General conditions of sale

§ 1     Provisions, Scope

(1)       Our Terms and Conditions of Sale shall apply exclusively; we do not recognize any terms and conditions by the customer diverging from or contrary to our Terms and Conditions of Sale, unless we have explicitly agreed in writing to their validity. Our Terms and Conditions of Sale shall also apply if we effect a delivery to the customer without reservation being aware that the customer’s terms and conditions diverge from or are contrary to our Terms and Conditions of Sale.

(2)       Our Terms and Conditions of Sale shall only apply for enterprises.

§ 2     Offer, Written Form, Offer Documents

(1)       Our offers are subject to confirmation.

(2)       If the customer’s order has to be qualified as an offer, a contract shall only be deemed as concluded after our written confirmation of order.

(3)       Collateral agreements and modifications of the contract shall be made in writing. The same shall apply to any waiver of the requirement of written form.

(4)       We reserve the title and the copyrights to any figures, drawings, specifications, samples, calculations and other documents. This shall also apply to written documents designated as “confidential”. You shall not disclose any documents provided to you to third parties or exploit them otherwise.  Moulds and other tools shall remain our property, even if the costs incurred for these are included in the sales price or are otherwise remunerated by you.

(5)       If we have to deliver pursuant to your figures, specifications, samples, etc., you shall assume the risk that they are suitable for the intended use. You shall also be liable if we infringe any property rights of third parties. If any third party prohibits us from manufacturing and delivering the objects we made pursuant to your figures, specifications, samples, etc., invoking a property right held by such third party, we are entitled – without being obliged to review the legal situation – to discontinue the manufacture and delivery and to request compensation for the costs incurred to the exclusion of any claims for damages on your part. If we are entitled to claim further damages, we reserve the right to claim these damages.

§ 3      Delivery Period

(1)       The delivery period specified by us shall only commence when all technical questions are cleared up.

(2)       The performance of our duty to deliver furthermore requires the proper performance of the customer’s duties in due time. We reserve the right to the defence of non-performance of the contract.

(3)       If the customer is in default of acceptance or if he is in culpable breach of his duties of cooperation, we are entitled to claim compensation for the damage we sustained in this respect, including any additional expenses. We reserve the right to enforce further claims or rights.

(4)       If the conditions of paragraph (3) apply, the risk of an accidental loss or a accidental deterioration of the object of purchase shall pass to the customer at the point of time when he is in default of acceptance or in debtor’s delay.

 (5)      We are entitled to refuse delivery until the agreed consideration is effected or the corresponding securities are provided if the customer’s financial situation has deteriorated or this circumstance already existed at the conclusion of the contract, but we have become aware of it only afterwards.

(6)       We are entitled to effect partial deliveries.

(7)       In the event that we are in delay of delivery, we shall be liable pursuant to the legal provisions, provided that the delay in delivery is caused by an intentional or grossly negligent breach of contract for which we are responsible; any fault of our representatives or vicarious agents shall be attributable to us. If the delay in delivery is caused by a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable and typical damage.

(8)       We shall be liable pursuant to the legal provisions even in the event that the delay in delivery for which we are responsible is caused by a culpable breach of a material contractual duty; in this event, the liability for damages shall be limited to the foreseeable and typical damage.

(9)       Any further legal claims and rights of the customer shall be reserved.

§ 4      Passing of Risk

(1)           As of the time of the loading on the means of transport, any goods shall be shipped at your risk – irrespective of any regulation agreed as to the freight charges.  

§ 5      Force Majeure

(1)                   Force majeure and other unforeseeable circumstances which impede or prevent the manufacture or delivery, e.g. war, industrial disputes, riots, measures taken by official authorities, energy or raw material shortage, operational breakdowns, failure to supply by our suppliers, disturbances of traffic, shall release us from the duty to deliver for the duration of these circumstances.

                     

 

§ 6      Liability for Defects

(1)       The customer shall immediately inspect the goods upon our delivery, as far as this is feasible in the proper course of business, and if a defect is discovered the customer shall immediately notify us of such defect. If the customer fails to notify us, the goods shall be deemed as approved, unless it is a defect which was not perceptible at the inspection. If such a defect is discovered later, notice thereof shall be given immediately after its discovery; otherwise the goods shall be deemed as approved also in respect of this defect.

(2)       If there is a defect in the object of purchase, we are entitled at our option to effect subsequent performance by remedying the defect or to deliver a new faultless object. In the event of a subsequent performance, we shall bear the required expenses only to the amount of the purchase price.

(3)       If the subsequent performance fails, the customer is entitled at his option to require rescission or reduction of the purchase price.

(4)       We shall assume liability pursuant to the legal provisions, provided that the customer claims compensation for damage caused by intent or gross negligence, including by intent or gross negligence of our representatives or our vicarious agents. Unless we are accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable and typical damage.

(5)       We shall assume liability pursuant to the legal provisions, provided that we are in a culpable material breach of contract; however, also in that event our liability for damages shall be limited to the foreseeable and typical damage.

(6)       This shall not affect the liability for culpable injury to life, body or health; nor shall it affect the mandatory liability pursuant to the product liability act.

(7)       Any liability shall be excluded unless otherwise provided herein above.

(8)       The limitation period for claims based on defects shall be 12 months, calculated as of the passing of risk.

(9)       The limitation period in the event of recourse against suppliers pursuant to the pertinent provisions of the German Civil Code shall remain unaffected.

§ 7      Total Liability

(1)           Any liability for damages reaching further than provided in Section 6 shall be excluded – irrespective of the legal nature of the asserted claims. This shall in particular apply to claims for damages arising from culpa in contrahendo, arising from any other breach of duty or for claims in tort for compensation for property damage.

(2)       The limitation pursuant to paragraph (1) above shall also apply if the customer claims compensation for useless expenses in lieu of performance instead of demanding compensation in lieu of performance.

(3)       If our liability for damages is excluded or limited, this shall also apply in respect of the personal liability for damages of our employees, workers, staff members, representatives and vicarious agents.

§ 8      Securing of Reservation of Title

 

(1)       We shall reserve the title to the object of purchase until the receipt of all payments arising from the business relation with the customer.

(2)       The customer shall handle the object of purchase with care; the customer shall in particular insure the object of purchase against fire, water damage and theft at the sufficient replacement value at his own expense. If maintenance and service work is required, the customer shall conduct such work at his own expense and in due time.

(3)       In the event of any seizure or other third party interference, the customer shall give us immediate written notice thereof, so that we can bring a legal action. If the third party is not able to reimburse us for the judicial and extrajudicial costs incurred for a legal action, the customer shall be liable for the loss sustained by us.

(4)       The customer may re-sell the object of purchase in the proper course of business. However, he shall even now assign to us any claims amounting to the final invoice amount (including any value added tax) of our claim which accrued to the customer from the re-sale against his purchasers or third parties, irrespective of whether the object of purchase is resold without processing or after processing. The customer shall remain entitled to collect this claim also after the assignment. Our authority to collect the claim by ourselves shall remain unaffected. However, we shall not collect the claim, as long as the customer meets his financial obligations from the proceeds received, is not in default of payment and in particular no petition for opening reconcilement or insolvency proceedings has been filed or payments have not been suspended. However, if the above applies, we may demand that the customer disclose the assigned claims and their debtors to us, provide any information required for collection, deliver the related documents and inform the debtors (third parties) of the assignment.

(5)           The customer shall always perform the processing or transformation of the object of purchase for us. If the object of purchase is processed together with other objects not owned by us, we shall acquire the co-ownership in the new object in relation of the value of the object of purchase (final invoice

amount including any payable value added tax) to the other processed objects at the time of processing. In other respects, the same shall apply to the object arising from such processing as to the object of purchase supplied under reservation.

(6)       If the object of purchase is inseparably mingled with other objects not owned by us, we shall acquire the co-ownership in the new object in relation of the value of the object of purchase (final invoice amount including any payable value added tax) to the other mingled objects at the time of mixing. If they are mingled in such a way that the object of the customer has to be deemed as the main object, it shall be deemed as agreed that the customer assigns the proportional co-ownership to us. The customer shall keep the solely owned or co-owned object arising therefrom in safe custody for us.

(7)           We undertake to release the securities due to us upon the customer’s request in as far as the realizable value of our securities exceeds the claims to be secured by more than 10 %; we shall be responsible for selecting the securities to be released.

§ 9      Final Provisions

(1)       The customer may only deduct a cash discount if we have concluded an express agreement with him in writing granting such a payment discount.

(2)       The customer shall only have rights of set-off if his counter-claims are declared by a final judgement, are undisputed or acknowledged by us. Moreover, the customer is authorized to exercise a right of retention to the extent his counter-claim is based on the same contractual relation.

(3)       The customer shall not assign or pledge any contractual claim without our prior written consent.

(4)           Our mutual legal relationship shall be governed by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (Uniform law on the International Sale of Goods).