General Terms and Conditions of Sale and Supply

The following General Terms and Conditions of Trade (GTCT) are valid in commercial business with all of our customers. In as far as no other provision has been expressly agreed to between us and our customers, the provisions of the German civil code (BGB) shall apply.

1) APPLICATION and GENERAL

a) Our GTCT are also valid in those cases where in the context of subsequent agreements we do not expressly refer to them based on a current commercial relationship. Conditions in opposition to or varying with our GTCT are only binding for us to the extent that we have agreed expressly in each case. 
Our offers are non-binding, orders and other agreements therefore do not become valid unless a written confirmation has been sent, or upon the handing over of the merchandise respectively.

b) The customer is responsible for the completeness, correctness, and timeliness of the execution documents which have to be acquired or provided by him. When they are sent in an electronic form they are only binding if we have confirmed expressly complete receipt thereof.

c) Should upon request of the purchaser a delay in delivery take place which lasts more than one month after the notice ready for dispatch, then the purchaser can be charged with a storage fee in an amount of 0.5% of the price for the delivery items, not exceeding 5% however. Regarding the proof of higher or lower storage costs, the contract parties are not subject to any further reservation. 

d) As to standard software, the purchase has the non-exclusive beneficial right in a non-modified form comprising the performance features on the agreed devices as agreed. The purchaser may produce a backup copy without any expressive stipulation. 

2. DELIVERY/SETUP and ASSEMBLY 

a) The place of fulfilment of the delivery is the manufacturing plant (distance delivery), other enterprises acting on our behalf or the distribution centre unless nothing to the contrary has been agreed. Any delivery takes place on the customer’s account and risk. We reserve the right to decide on the shipment mode, assuming that no special type of delivery is agreed upon. If upon request of the purchaser the product is delivered to the address given by him then the risk of incidental loss or incidental deterioration of the product will pass on to the purchaser upon it being handed over to the forwarding agent, upon it leaving the works at the latest, notwithstanding whether the shipment is made from the place of performance and who is responsible for the freight costs. We reserve the right to perform orders by means of partial delivery unless any provision to the contrary has not been agreed. Objections against partial deliveries do not release from the obligation to receive the remaining amount of the ordered product as required by the agreement.
If any dispatch, delivery, commencing, production of setup or assembly, acceptance in the own plant or test plant is under default due to a reason for which the purchaser is responsible or the purchaser is by any other reason subject to an acceptance default, then the risk will pass to  the purchaser. .

b) Stipulated delivery terms principally relate to the provision of the product ready for delivery and/or dispatch from the plant or distribution centre, respectively. Our obligation of delivery will be inactive as long we are not in possession of the delivery notes as well as any necessary or expedient documentation, and the relevant information has not been provided. 

c) Any shortcomings in raw materials or energy supplies, strikes, lockouts, traffic disturbances and official injunctions as well as a non-adherence to delivery dates by our suppliers, plant interruptions, any events of force majeure and other circumstances which are not to represent by us or a company working for us, shall release us from any delivery obligation for the time of their existence to the extent that they affect our capability of delivery. Furthermore, in any event aforementioned we are entitled, notwithstanding § 7 of these GTCT, to withdraw from the agreement without any obligation to indemnification thereof, if the performance has become impossible or inadmissible or an ending to the performance hindrance is not determinable. The customer will be immediately informed. In the event that after the confirmation of the order extraordinary increases (20 % and more) in the prices for raw materials and energy supplies take place which have an effect on the selling price, we are also entitled to repudiate the contract. Our delivery obligation will be inactive to the extent that the customer is in default regarding a due debt, and also resulting from the permanent business relationship.
In the event that we become aware of facts or circumstances which cause doubt on the solvency of the purchaser (especially in case of non-payment of overdue invoices for which a reminder has been issued, institution of insolvency proceedings) and the purchaser, in spite of appropriate request, is not willing to make a sufficient security payment, we are entitled to repudiate the contract in part or as a whole, taking section 7 of these GTCT into account. 

d) The purchaser must immediately inspect and check whether the product has been provided faultless and complete and after any detection of any visible defects, he must make immediate notification of any eventual visible or invisible defects. 
To the extent that the product has not been accepted on the stipulated delivery date or within due delivery period it will be considered as approved or accepted as of the ending of the fifth business day after the delivery date or expiry of the period. 

e) Penalties will only become ineffective against us if they have been stipulated in each case by means of a special agreement. 

3. MATERIAL DEFECTS

a) If a defect exists to be represented by us, then the purchaser is entitled to demand upon his selection the removal of the defect or delivery of a faultless product. After the assembly only the reduction of the price can be required. 

b) Regardless of the other rights of the customer, we are entitled to deny the post-fulfilment of the product according to the mode chosen by him if it will become possible only at disproportionate costs. In this case the item’s value, the impact of the defect, and the question will especially have to be reconsidered if our company might have recourse to the other type of post-fulfilment without relevant disadvantage for the purchaser. In that case, the customer’s claim is restricted to the other type of subsequent fulfilment. Our right to deny equally this alternating type of subsequent fulfilment remains unaffected, if it will become possible only at disproportionate costs. When a faultless item is delivered by us for the purpose of subsequent fulfilment, then the purchaser has to return the defective item according to §§ 346 to 348 BGB. If any replacement delivery or any rework fails or causes disproportionate expenditure, only a reduction of the agreed purchase price can be demanded after the assembly. 

c) Claims in respect of material defects will be statute-barred after 12 months. Any warranty is precluded in case of used products. The customer is required to make immediate written notice of any material defect. 

d) In connection with any notice of defect, payments of the customer may be retained to the extent that they are in a reasonable relationship to the defects occurred. The customer may withhold payments only if a notice of defect is claimed the justification of which does not raise any doubt. Should the notice of defect have shown to be groundless, we are entitled to demand compensation for our expenditures by the customer. 

e) We are initially to be provided with the opportunity of providing a subsequent fulfilment within a reasonable period. 

f) If the subsequent fulfilment fails, the customer may repudiate the contract or reduce the remuneration irrespective of any eventual indemnification claims pursuant to § 7. 

g) Claims for defects will not exist in connection with an irrelevant variation to the specified property, irrelevant impairments of the usage, natural wear or damages which after the transfer of risk have arisen due to faulty or negligent handling, excess strain, inappropriate equipment, deficient building work, inappropriate building site, or by reason of other influences which are not among the requirements of the agreement, or in connection with reproducible software faults. If modifications or repair work are performed in an inappropriate way by the customer or a third party then any claim for defects will not exist for these and any consequences arising thereof. If our products are manufactured by means of natural aggregates these can be subjected to certain variations regarding their character such as efflorescence, colour variations, ridges, pores, shrink holes, or surface cracks. 
Patterns or samples count as a non-binding exhibit. Minor variations do not justify any objection. .

h) Any claims for a visible defect, wrong delivery, less or excess amount has to be immediately asserted in the written form. In each case, the complaint assertion of claims will have to be made before any processing, amalgamation, or mixing is performed. Claims for concealed defects must also be notified to us in writing immediately after their detection. The customer will grant us the opportunity to have the defect examined by ourselves and/or by experts on our behalf; we shall have this right to the extent that the customer does not provide us with credible information that immediate action had to be taken due to imminent danger. The bearing of costs incurred for externally commissioned experts will require a written agreement in each case. 

i) Any claims of the customer arisen from expenses required for subsequent fulfilment, especially transport costs, fare payments, labour and costs for materials are excluded to the extent that expenses will increase because the item of delivery has subsequently been transported to a location other than the customer’s establishment unless this shipment corresponds to use according to determination. Otherwise these expenses are born by us.

j) Any legal claims of recourse of the customer against us only exist to the extent that the customer has not entered with his purchaser any agreements in excess of the legal claims for defect. In addition, in respect of the customer’s right to recourse against us lit. i) is correspondingly applicable. 

k) In respect of claims for indemnification furthermore § 7 (other claims for indemnification) is applicable. Exceeding or other claims of the purchaser than those provided for under this § 7 claimed against us and our subcontractor by reason of a material defect are excluded. 

4. IMPOSSIBILITY; ADjustment of agreement

a) To the extent that the delivery is impossible, the customer is entitled to demand an indemnification unless we are not responsible for the impossibility. The claim for indemnification, however, is restricted to 10% of the value of that part of delivery which by reason of impossibility cannot be used in an expedient manner. This restriction is not applicable to the extent that liability is enforced by reason of premeditation, gross negligence, injury to life, the body or health of a person. Herewith no modification in burden of proof will be associated with prejudice to the customer. The customer’s right to withdraw from the agreement remains unaffected. 

b) To the extent that unpredictable events according to § 2 lit. c) alter significantly the meaning or the content of our delivery or have a significant impact on our operations, the agreement will be amended properly in good faith. To the extent that this amendment seems economically unreasonable, we are entitled to withdraw from the agreement. In the event that we wish to use that right of withdrawal we will have to notify immediately the customer after getting aware of the consequences from that event, and particularly in any cases where nothing had been stipulated in advance.

5. PRICES AND PAYMENT TERMS

a) The prices shall apply ex works or distribution centre, respectively, exclusive of freight costs, package, and value added tax to the extent that no peculiar provision has been agreed.

b) Deliveries are made carriage paid as from a net value of  EUR 1,000.00.

c) Invoices will be due for payment within thirty (30) days after date of invoice without deduction. On payment in cash within fourteen (14) days after the date of invoice the purchaser will be granted a discount of 3 %.

d) If we have assumed responsibility for the setup or assembly and nothing to the contrary has been stipulated the customer will bear, apart from the remuneration agreed, any necessary incidental expenses such as travelling costs or other travel expenses, expenses for the transport of tools and personal baggage as well as daily allowances. 

e) We reserve the right to accept bills of exchange. We can refuse to accept cheques where reasonable doubts on coverage exist. The acceptance shall always apply only by reason of fulfilment. Discount or collection charges and any other expenses will be charged to the customer and payable immediately in cash. On our part, there is no obligation to presentation in due time, protest, etc. 
In any case, our receivables immediately become payable where the customer will be in default regarding the performance of another liability against us. The same has validity if the customer is subject to bankruptcy, over indebtedness or insolvency proceedings on his assets or the institution of such proceedings is rejected in default of total assets or circumstances become known which cause reasonable doubt on the creditworthiness of the customer. In case of default of payment we may charge irrespective of any further claims the interest customary in the line of bank business, however at the minimum an interest rate equal to 8 percentage points above the rate of the European Central Bank. In the event that the customer will be in default of payment we are entitled to make at our choice further deliveries or services subject to prepayments or security payments, to demand compensation for late service or to withdraw from the agreement. This will not be applicable in cases where the customer has rightfully submitted a complaint concerning the delivery. Furthermore, we can return accepted bills of exchange before the date of expiry and require immediate payment in cash.
The customer will be in default at the latest where he does not pay within thirty (30) days after receipt and due date of invoice or an equivalent payment statement. 

f) In connection with debts on several deliveries or services we are entitled to make a reservation for the settlement of payment on account of the one or the other debt. The customer is not authorized to retain payments or to deny payments by reason of any claims, also in the event that claims for defects are pending. He only may setoff against eventual counterclaims when they are uncontested, recognized, and legally effective. 

6. Security rights

a) We reserve our title in any product delivered until any debts are settled irrespective of their legal cause and time of origin resulting from the business relationship with the customer, until an eventual current account balance has been settled, and where bills of exchange or cheques were received, until they have been cleared. The customer may process and/or sell the materials delivered during proper operation. The power for disposal becomes invalid where the customer has agreed with his customers a restraint on assignation. The customer is committed to use products under reservation of title in a careful manner. In the event that an infringement occurs we are entitled to demand immediate return. 

b) As long as the reservation of title exists, the processing or reworking of the product will be made for us. Pursuant to §§ 947, 950 BGB, we have the right to property or co-property on the new item originating from it. 
While aggregating or mixing the product under reserve with other items we will have a pro rata property right to the new product related to the value of the product under reservation and the value of the other items at the time of aggregating or mixing, respectively, pursuant to § 948 BGB. The new product resulting from processing, aggregating or mixing respectively, shall be applicable as a product under reserve according to these terms. The customer shall herewith assign any claims together with any accessory rights to us which he may be entitled to by reason of the selling of the reserved product under reserve to his customers, while in connection with processing, aggregating, and mixing the amount of value will be equivalent to the product delivered. 

c) As soon as he is in default, the customer will have to disclose the assignation to his debtors and give us any necessary information, as well as to handover the relevant documentation at our request. If the value of the products under reserve or the securities granted exceeds the amount of our receivables by more than 20% then we are obliged to proceed to their release or re-assignation, respectively, upon request of the customer. 

d) If any product delivered or any items produced using it are assembled into the real property of a third party in such a way that they become essential parts of that real property then the customer’s receivables against his customers representing these items equivalent to the value of the purchase price of the assembled product will be transferred to us in order to secure our claims, without requiring a special letter of assignation thereof. This subrogation is agreed according to the time of its origin.

e) The customer may not pledge nor pledge as security any product under reservation of title, and he has immediately to notify to us any attachment caused by third parties. 

f) The return or enforcement of the reservation of title will not require a declaration of repudiation on our behalf. Any of these actions or attachments of products under reserve do not imply the withdrawal from the agreement unless it has been expressly declared by us.

7. OTHER CLAIMS FOR INDEMNIFICATION

a) Claims for indemnification and special expenses of the customer (in the following claims for indemnification) are excluded irrespective of their legal cause, particularly by reason of infringement of any obligation from the debt and tortuous act, even if they result from a subcontractor commissioned by us. 

b) This will not be applicable to the extent that liabilities are subject to enforcement such as the law on product liability, cases of premeditation, gross negligence, death, personal injury or health impairments, any infringement against essential obligations from the agreement. However the claim for indemnification that results from any infringement against essential contractual obligations is restricted to the typical, predictable damage, to the extent that any premeditation or gross negligence has been committed, nor any liability on the grounds of death, injury or health impairments. The preceding provisions do not imply any modification in respect of the burden of proof with prejudice to the customer. 

c) To the extent that the customer is entitled to claims for indemnification pursuant to § 7 hereof, these will prescribe at the date of expiry which is applicable to claims for defects pursuant to § 3 lit. b).

8. CONSULTATION

a) Any consultations are not part of the supply agreement, they are only binding if they were sent in written form and stipulated by agreement. They do not release the customer from his obligation to process our products in an appropriate and functional manner. 

b) Construction and other proposals, designs, drawings, samples, image data, and tools delivered by us remain our property and may not be made available to third parties or copied, totally or partially, without our express affirmation, as any other documentation we provided.  

9. FINAL PROVISIONS

a) Place of fulfilment for the delivery is our delivery plant, for the payment our business location. 

b) If the contract party is a merchant, a legal person of public law or fund assets regulated by public law the competent courts of our business location are agreed as the relevant courts. The same holds when the contract party has no domestic place of jurisdiction or after entering the agreement the party has relocated its residential address or usual residence beyond the German territory or the usual residence is not known at the time of the institution of legal proceedings.

c) The laws of Germany are applicable to the agreement under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

d) If any of these provisions becomes or will become invalid, ineffective, or impossible the validity of the other provisions will not be affected. In that case the relevant legal provisions will apply.