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General Terms and Conditions of Sale and Delivery
Last update: February 2007
Karl Georg Schobert Präzisions-Meßzeug GmbH
Am Grubenteich 3
Telephone: 0049 (0)6021/31092–0
Fax: 0049 (0)6021/31092–22
Please use the address above for business correspondence.
(1) In addition to the individual contractual arrangements and the applicable legal provisions, these General Terms and Conditions of Sale and Delivery shall exclusively govern the entire business relationship between our company and the customer. We do not accept terms and conditions of the customer that are contrary to the provisions of these General Terms and Conditions. The confirmation of an order shall not imply any endorsement of such terms and conditions. The absence of an explicit rejection shall not be construed as an acknowledgement of the customer’s terms. The present Terms and Conditions shall be applicable, even if we accept payments or provide services in awareness of the customer’s contradictory or incongruent terms and conditions. The customer shall be deemed to endorse our terms and conditions when signing an agreement or accepting our delivery or services.
(2) Upon signature these General Terms and Conditions of Sale and Delivery shall become integral part of the agreement with the customer and subsequently govern the entire business relationship and therefore all successive future agreements until they are replaced by new terms and conditions.
II. Services, Suitability, Documents
(1) Our written confirmation of the order determines the extent of our services as described in our offer. However, if the offer contains a time limit for acceptance, the customer is required to accept the offer within the fixed period of time. Otherwise the offer shall no longer be binding. The quality and characteristics of the supplied products shall correspond to the samples submitted to the customer prior to the start of the production of the ordered items.
(2) We do not give any warranty as to the information about our products provided in brochures, catalogues or other documents as well as in electronic media (internet), relating to the suitability of the products for specific uses, unless certain qualities are explicitly guaranteed in our offer or in the confirmation of the order. However, such guarantees shall not release the customer from the obligation to carry out tests and trials. The customer is in particular required to verify the suitability of our products, despite our recommendations, for the intended or any other use. This includes the verification of the compliance of the use of our products with statutory or administrative provisions.
(3) All quotes, charts, drawings, cost estimates and any other documents shall be subject to intellectual property rights and the provisions of the copyright law. It is not allowed to pass such documents on to third parties or use them for purposes that are not explicitly authorised. This shall in particular apply to documents which are marked as “confidential”. The customer may not forward such documents to third parties without our prior written consent.
III. Quote, Agreement, Written Form
(1) We shall be entitled to withdraw our offer until the customer has declared acceptance. Any order of the customer, which cannot be construed as an acceptance of our specific offer, shall not become binding until we have explicitly confirmed it. The order confirmation determines the extent of the services.
(2) Basically, the order of the customer shall be construed as an offer, which does not become legally binding until we have confirmed it in writing (order confirmation).
(3) Unless otherwise agreed, we shall accept the order of a customer within two weeks following the receipt of the request. If it were not possible to send an order confirmation to the customer, the delivery of the goods shall be construed as an implicit order confirmation.
(4) Generally, any declaration of intent has to be made in writing by the customer. Orders made by telephone or email shall be deemed to be executed at the risk of the customer.
IV. Small Order Charge, Cancellation Charges
(1) For small orders of a net value under € 50.00 we charge a net surcharge of € 25.00.
(2) If the customer cancels an order, we shall be entitled to claim compensation for damages equivalent to 10% of the agreed price for administration costs and losses incurred, unless higher damages can be proved. Likewise, the customer is free to prove lesser damages.
V. Prices, Invoicing, Payment Terms, Interest, Solvency Problems, Miscellaneous
(1) Unless otherwise agreed, the prices are exclusive of VAT and subject to change (shipment from the Aschaffenburg production site). The customer incurs the costs for packaging, shipping, postage and transport insurance as well as tariffs. We reserve the right to issue a bill according to the rates and discounts applicable on the day of delivery. The prices indicated in the catalogue are per item in Euro. We will only take out a shipping insurance policy for the merchandise upon written request of the customer, who incurs the insurance costs. Cash on delivery or prepayment is required from customers with whom we have no ongoing business relationship.
(2) Our prices are calculated on the basis of the values of the common cost factors applicable on the date of the order or confirmation of the order, unless we have submitted a specific quote to the customer. We reserve the right to raise the prices within the limits of the legal provisions in the event of a significant rise of the costs for wages and salaries, material, energy or other cost factors. Upon request of the customer, we will provide documents for justification.
(3) Generally, due payments shall be settled within 30 days of the invoicing date and shall be made by bank transfer in Euro without deduction into our bank account indicated on these pages. We grant a discount of 2 % for prompt payments made within 10 days of the date of the invoice.
(4) If the parties have agreed that the delivery of the goods can be called off by the customer within a determined period of time, we shall be entitled to submit the invoice to the buyer from the moment in which the products are ready for shipment. This shall also apply to call-off orders with fixed delivery dates.
(5) The payment is expected to be made in the way that we can dispose of the money by due date.
(6) If the customer should fall into arrears with a payment, we shall be entitled to levy interest of 8 per cent above the applicable base rate, as set out in § 247 BGB (German Civil Law). The interest shall be due immediately. Both contracting parties shall have the rights to provide evidence proving a higher or lesser damage.
(7) If the customer fails to settle a due amount or if other circumstances should arise indicating a significant deterioration in the customer’s financial position after the signature of an agreement, we shall be entitled – regardless of the due date of a bill of exchange we may have accepted – to demand immediate payment of all debts arising from the same agreement. If justifiable doubts, regarding the solvency or creditworthiness of the customer, should emerge, for example due to the opening of an insolvency proceeding, we shall be entitled to require immediate payment of the customer’s liabilities or the provision of a suitable security. If the customers refuses to provide prepayment or securities, we shall have the right to withdraw from the agreements after having granted a reasonable grace period and claim compensation for the expenses, damages or losses arising from the non-fulfilment of the contractual obligations.
(8) Notwithstanding the provisions above the legislation relating to payment default shall apply.
(9) We expressly reserve the right to decide each time whether or not to accept a bill of exchange or a cheque. The acceptance shall be deemed to be conditional. The debtor incurs bank, cashing and collection charges.
(10) Notwithstanding the provisions of §§ 366, 367 BGB (German Civil Law) and regardless of potentially different terms of the customer, we reserve the right to assign payments to the customer’s liabilities at our discretion. The customer shall be deemed to waive the right to determine the assignment of the payments.
VI. Set-off, Rights of Retention
(1) The customer shall only be entitled to set off debts against uncontested or judicially validated counterclaims.
(2) The customer shall only be entitled to exercise the right of retention in relation to counterclaims arising from the same agreement.
VII. Quantity and Quality Tolerances
(1) The quantity of goods delivered may vary within a tolerance of 10 % from the quantity actually agreed.
(2) Variations in dimension, weight and physical properties shall be admissible in accordance with the DIN/EN/ISO standards or to the commonly accepted level in commercial transactions.
VIII. Modifications, Control Parameters
(1) If the customer fails to provide essential information or if the information provided turns out to be incorrect, we reserve the right to modify the services accordingly. The customer shall be held responsible for problems arising therefrom and notably bear expenses and losses due to the inadequate information.
(2) The customer shall accept minor changes in the manufacturing of the products with respect to the specifications established in the confirmation of the order regarding the design, used tools and production facilities or manufacturing processes. However, the modifications may not significantly affect the price, the functionality or the delivery period.
(3) Before the start of the production, it may be necessary to establish adequate testing procedures, if the products must meet certain requirements as to the dimensions, functionality or other control parameters. The testing methods must be endorsed by both parties. If no arrangement has been made, we will use our own control methods.
IX. Supply, Delivery Period and Dates, Contractual Obligations, Partial Deliveries
(1) The supply and the services are specified in our offer or in the confirmation of the order.
(2) The delivery period shall start running on the date of receipt of the order confirmation or the day on which we have received all necessary documents and permits from the customer. The dates of delivery may be deferred accordingly. The agreed delivery period shall be construed as an approximate timeframe, unless a date of delivery has been explicitly specified in the agreement. Despite a careful preparation of the “congruent hedging agreement”, the specified period or dates of delivery shall be subject to the timely and accurate supply of raw material and delivery of minor quantities of the products purchased from subcontractors, as agreed or commonly accepted in the sector. We do not accept any responsibility for delays in delivery due to unforeseeable production failures.
(3) The proper delivery depends on the timely and orderly fulfilment of contractual obligations by the customer. If the customer fails to timely fulfil contractual obligations or duties regarding the provision of national or foreign certificates, agreed prepayments or other requirements, we shall be entitled – notwithstanding the exercise of rights arising from any default of the customer – to extend the period or defer the dates of delivery according to requirements inherent to the production and order management processes.
(4) The delivery shall be deemed to be timely when the goods are dispatched “ex works” or when the notice of readiness for collection is given within the agreed delivery period or on the date of delivery.
(5) We shall be entitled to carry out partial deliveries and invoicing, unless this would be detrimental to the execution of the agreement.
(6) If the delivery date is not or cannot be precisely determined, the enforcement of claims made on the grounds of non-compliance with the agreed delivery period requires a prior warning letter and the fixing of a grace period.
X. Payment Default, Loss Mitigation, Storage Charges
(1) In the event of a delayed delivery due to our fault, we shall only be held liable for proven damages incurred by the customer due to the delay in performance as set out in the provisions of part XIX. Damage claims for a delayed delivery, which is not attributable to our company, shall be excluded. We will immediately notify the customer of the foreseeable delay in delivery.
(2) Given the obligation to mitigate damages and losses, the customer shall be obliged to look immediately for alternative procurement options taking into consideration our suggestions for the supply of substitute goods, whilst withdrawing from the agreement. We will reimburse the customer for additional costs arising from the purchase of the substitute items. If the customer does not take reasonable action to mitigate expenses and losses, our liability shall be limited to 50 % of the proven damages resulting from the failed delivery.
(3) In the event of a delay in acceptance by the customer, we shall be entitled to claim compensation for damages arising therefrom. When failing to accept the performance, the customer shall bear the risk of accidental damages, destruction or loss of the goods.
(4) If the collection or delivery of the goods is delayed upon request of the customer or for any other reason attributable to the customer, the risk of damage to or loss of the goods shall pass to the buyer once the readiness for delivery or collection has been notified. We shall, however, be obliged to take out a shipping insurance policy on behalf of the buyer, if required. The customer shall bear the costs for the prolonged storage period. The minimum penalty amounts to 0.5 % of the invoice value and is payable on a monthly basis from the date of the notice of readiness for delivery. We shall be entitled to store the goods at our discretion and at the risk and expense of the customer, take all appropriate measures to secure the goods and proceed with the invoicing considering the goods delivered. Notwithstanding the foregoing, the legal provisions regarding delayed acceptance shall apply. After having vainly granted a reasonable additional grace period for the collection of the merchandise, we shall be entitled to dispose of the goods at our discretion. We may in particular dispatch the merchandise within a reasonably extended period of time or carry out the delivery immediately at the risk and expense of the customer.
XI. Force Majeure
Events of “Force Majeure” and any serious unforeseeable incident beyond our control, such as strikes, lockouts, delays in supplies or failed deliveries of sub-contractors or any other problem regarding operation, transport or supply due to a shortage of energy, raw materials or workforce, difficulties in shipment, traffic problems and other “Acts of God” affecting either our company or our suppliers, shall release us from the fulfilment of contractual obligations for the time the obstacles or problems persist. We shall not be held liable for damages or losses arising from the above mentioned circumstances, even in the event of failure or delay in performance. We shall immediately give the customer notice of the duration of such obstacles or problems or of the unavailability of the goods. If the delivery is delayed for more than 4 weeks as a result of such circumstances, both contracting parties shall be entitled to withdraw from the agreement. The costs arising from contractual obligations and incurred before the termination of the agreement shall be refunded. Further claims for compensation shall be excluded.
(1) Requests for delivery made in relation with partial delivery agreements, framework agreements and similar continuous obligation contracts shall be made without delay.
(2) Call-off orders or agreements on partial deliveries require a written arrangement of the delivery timetable. We shall be entitled to purchase the material for the entire order and to produce immediately all ordered goods.
(3) For call-off orders, we grant, unless otherwise agreed, a period of 6 months following the date of the order. If we do not receive any request for delivery during this period, we shall be entitled to charge the customer with the full amount or withdraw from the agreement.
XIII. Passing of the Risk, Miscellaneous
(1) The date in which the risk passes to the buyer is established in the international rules governing the interpretation of transaction clauses issued by the International Chamber of Commerce (INCOTERMS 2000). The German version of the rules in force at the date when the agreement is signed shall apply. If the agreement does not contain any provision regarding the sales proceedings, the delivery of the goods shall be deemed to be “ex works”. In this case, we shall be obliged to give the customer notice of the date of delivery or collection. The notification shall be issued early enough to allow the customer to take all the measures which are usually necessary.
(2) The risk of accidental loss or destruction of or damage to the merchandise shall pass to the buyer, once the notification of readiness for collection has been issued. The handover of the goods to the shipping service provider or the dispatch “ex works” shall be equivalent to the notification of readiness for delivery as to the legal meaning, provided that the goods are delivered upon request of the customer.
(3) Any delivery shall be deemed to be at risk of the customer, even if free shipping has been agreed.
(4) In the event of a failed delivery due to reasons we are not responsible for, the risk of loss of or damage to the goods shall pass to the buyer once he has received the notification of readiness for delivery.
XIV. Shipping, Bearing of Cost, Inventory
(1) Unless otherwise agreed, we reserve the right to carry out the delivery on behalf of and at the risk and expense of the customer. We will only arrange insurance coverage for damages during transport upon request and at the expense of the buyer.
(2) If free delivery has been agreed, we take on the shipping and insurance cost. The fact that we incur the shipping charges shall not have any bearing on the passing of the risk, the place of fulfilment or on the meaning of the provisions above. We will choose the shipping service and transportation method, without, however, giving any warranty of choosing the cheapest shipping service, fully exploiting the potential weight capacity and meeting the wishes regarding the dimensions of wagons and containers. The customer shall incur additional costs arising from specific shipping requirements. The buyer is required to give us notice of special requirements well ahead of dispatch. We will strive to meet the wishes at the expense of the customer.
(3) In the event of loss of or damage to the goods during the transport, the customer is required to provide immediately documentation of the damages and give us notice in writing without delay within eight days following the receipt of the delivery. The damaged items must be returned to us.
XV. Packaging, Containers
(1) The delivery shall be deemed to be “ex-warehouse”. Unless otherwise agreed, we shall be entitled to choose the type and quality of the packaging. The choice of the packaging shall be made with carefulness to the best of our knowledge. As far as of common practice, the goods will be delivered packed. The customer shall incur the packaging cost. Special requirements beyond the shipment needs and any specific protective measures, for example, for an extended custody or storage period, must be agreed explicitly.
(2) Single-use packaging, for example wooden crates and cardboard boxes, shall be charged net without surcharge. The packaging items are property of the buyer and cannot be returned. Reusable pallets, pallet boxes, pallets with top frames and covers, containers and cases shall remain our property and must be returned free of charge to our warehouse.
(3) Special containers of the buyer have to be made available timely and free of charge to our logistics site. We shall not be obliged to carry out controls, cleaning or repairs. However, we shall be entitled to perform maintenance work at the customer’s expense.
(4) We shall be entitled to claim at our discretion either compensation for damages to or loss of packaging material or suitable replacement of the damaged items. If the packaging material is damaged, we may also charge the customer with the repair costs incurred.
XVI. Third Party Rights
(1) If items are manufactured according to indications of the customer, for example drawings, models or samples, the customer shall be held responsible for any infringement of third party rights arising from the production or the delivery of the product.
(2) If a third party objects to or prohibits the manufacturing or delivery of such items invoking a violation of the own property rights, we shall be entitled to cease the production and supply and claim reimbursement of the expenses incurred.
(3) We shall not be obliged to investigate into whether the prohibition is rightful or not.
(4) In such a case, compensation claims of the customer shall be excluded.
(5) We shall be entitled to claim compensation for losses arising from the infringement of third party rights. The customer shall be obliged to indemnify and to keep us indemnified for all claims of a third party as well as, in advance and upon request, for potential costs arising from a legal action against us.
XVII. Defects – Control and Information Obligations, Compensation Claims, Rights
(1) The exercise of the customer’s rights as well as any claim for compensation regarding supplies, services or works provided by our company shall require the proper fulfilment of all obligations by the customer, relating to control and notification as set out in § 377 HGB (German Commercial Law). Otherwise the defect of the delivered goods shall be deemed to be accepted. The provisions of § 377 HGB shall apply accordingly to service and works contracts. The notice of defect shall not release the customer from the obligation to pay the agreed price. The buyer is required to check the goods supplied immediately upon receipt and to give us promptly notice in writing of defects. Hidden defects that are not detectable despite a scrupulous control shall be reported to us immediately after having been found.
(2) In the event of a notice of defect, the customer shall immediately provide the opportunity to verify the defective item. If the complaint should turn out to be unjustified, we shall be entitled to charge the customer with the costs for shipping and controls.
(3) The claims for compensation of the customer shall only be enforceable as far as they are in accordance with the applicable legislation. We shall not be obliged to indemnify the buyer for liabilities arising from arrangements made with his customers which are more stringent than the legal provisions.
(4) In the event of a complaint regarding a defective item delivered by our company, we shall be granted a reasonable period to remedy the defect. We shall be entitled to either carry out repair or replace the defective items at our discretion. If we do not succeed in satisfying the customer, failing twice in remedying the defect, or if the remedial work is not reasonably deemed acceptable, the customer shall be entitled – notwithstanding claims for compensation – to withdraw from the agreement or require a price reduction. Claims for compensation of the expenses incurred for the remedial works, including costs of shipment, travel, salaries or material shall not be enforceable, insofar as the customer incurs additional costs due to the transport of the defective items from his premises to the site of repair, unless the shipment corresponds to the initial purpose. If there is urgency, notably if there are serious safety risks or if the customer incurs for any reason the risk of disproportionately high losses, the customer shall be entitled to have the defective items repaired by third parties and claim indemnity for the expenses arising from the remedial work. The customer shall nevertheless be obliged to give us immediately notice of such a measure.
(5) We do not give any warranty for the correctness of information provided in execution of this agreement, for example descriptions of services, references to DIN standards and other documents, unless we have explicitly declared in writing that we give warranty for such information provided to the customer. Product descriptions and specifications shall not be construed as a guarantee for the characteristics of an item or the durability of a given quality, unless the indications are binding specifications as set out in § 434 BGB or § 633 BGB (German Civil Law).
(6) Natural wear and tear, notably if it is due to special properties of the material used for our products and in particular damages due to improper or inadequate use, careless handling, incorrect assembly, excessive strain, inappropriate supplies or substitute materials or special impacts of the process environment, for example chemical, electrochemical and electric effects, shall not give rise to compensation claims of the customer, unless otherwise stipulated in the agreement or if the damages are attributable to circumstances we are responsible for.
(7) Compensation claims for damages or losses shall be excluded, if the products supplied by our company are used for other than the recommended purposes or if the use does not comply with our instructions, statutory provisions or rules issued by authorities. Furthermore, we shall not held liable for damages or losses, if the products undergo unauthorised processing, are not properly handled, incorrectly treated or used beyond the contractually agreed purposes.
(8) Compensation claims for damages arising from maintenance work provided by us without any legal obligation for the convenience of the customer, shall not be enforceable, unless explicitly otherwise agreed.
XVIII. Limitation Period, Extension
(1) The limitation period regarding claims or exercise rights relating to defects of our products, services or works, notably compensation claims for damages, is one year. This limitation period shall not apply to the cases for which §§ 438, section 1, No. 2, § 479 and 634 a, section 1, No. 2 BGB (German Civil Law) stipulate extended periods. The limitation period mentioned above shall apply to all compensation claims for damages against us, regardless of whether they are related to a defect in a product or not and the legal provisions underlying the claim.
(2) The limitation period stated in section 1, sentence 1 shall not apply in the event of wilful misconduct or fraudulent misrepresentation or if we have given warranty as to a specific characteristic of a product, if a compensation claim is related to the provisions of the Product Liability Law, involves death or personal injury, an infringement of personal freedoms, gross negligence or breach of major contractual obligations or in the event of a violation of the legal provisions governing sales of industrial goods.
(4) Remedial measures, such as the substitution of defective goods or the remedy of defects, shall not trigger a new limitation period, but shall suspend the ongoing limitation period for claims relating to the delivery of the defective goods for the time it takes to carry out the remediation work. Generally, the performance of remedial works by our company shall not be construed as an acknowledgement according to § 212, No. 1 BGB (German Civil Law).
(5) The provisions above shall not imply any inversion of the burden of proof to the detriment of the customer.
(6) Unless expressly otherwise established, the legal provisions regarding the start, suspension, extension or restart of a limitation period shall apply.
XIX. Limitation of Liability
(1) We shall be held liable for damages or losses arising from wilful misconduct or gross negligence in accordance with the general legal provisions. Otherwise our liability shall be limited, in accordance with the provisions of the Product Liability Law, to death or personal injury or breach of major contractual obligations, notably obligations, the fulfilment of which is essential for the proper execution of an agreement and on the fulfilment of which the other contracting party can normally rely. Compensation for damages or losses arising from a breach of contractual obligations due to ordinary negligence shall be limited to damages or losses which are foreseeable and “typically arise” from a given contract. This shall also apply to damages and losses resulting from gross negligence, if neither of the cases mentioned in section 2 of part XIX applies.
(2) Except in cases of wilful misconduct, gross negligence, breach of major contractual obligations, death or personal injury or if damages are subject to the provisions of the Product Liability Law, any liability for damages to the property of the customer, including physical and financial damages, loss of profit and other damages due to the use of the goods supplied by our company shall be excluded.
(3) The provisions of the above sections 1 and 2 may refer to both compensation and fulfilment and compensation instead of fulfilment, regardless of the legal basis, notably in the event of defects, breach of contractual obligations or tort. The stipulations of section 1 and 2 shall also apply to compensation for “expenses incurred in vain” and the liability for damages and losses due to failure or delay in performance.
(4) In the event of a compensation claim against our company, the indemnity shall be limited to the coverage provided by our product liability insurance, which amounts to 1 million Euro for physical or financial damages, or the coverage of our product recall insurance providing indemnity of up to 100,000 € for financial losses. This liability limitation shall not apply to product liability claims as well as to damages arising from gross negligence or involving death or personal injury or breach of major contractual obligations. Furthermore, our liability shall not be limited, if the customer claims compensation for damages or losses arising from the non-conformity of a product with a specific quality for which we have given warranty or assurance, unless the guarantee of a specific product quality refers merely to conformity of the goods supplied by our company with contractual stipulations, but not to the risk of consequential damages resulting from the non-conformity.
(5) Furthermore, any indemnity shall be excluded as far as the buyer has effectively limited the own liability towards his partners. The buyer shall be expected to make liability arrangements in favour of our company as far as possible within the legal framework.
(6) As far as our liability for damages and losses is limited or excluded, this shall also apply to all claims raised by the customer relating to misconduct in pre-contractual negotiation, breach of secondary obligations, claims in relation to the provisions of § 823 BGB (German Civil Law) as well as claims arising from failure or delay in performance. Any limitation or exclusion of liability shall also apply to the personal liability of our managers, employees, collaborators, representatives and agents.
XX. Tools, Auxiliary Equipment, Contract Works
(1) Tools and special devices crafted by our company shall be property of the customer, although remaining in our possession, unless the customer requires us to hand the items over upon termination of the agreement and collects them at his own expense. We shall be entitled to use or dispose of such specially produced devices at our discretion after a period of 2 years, if the customer does not collect the items. The customer shall be deemed to waive any compensation claims.
(2) The customer shall be held responsible for the control and quality of items (characteristics of the material, dimensional accuracy) made available to us, for example gauges, raw material, unprocessed work pieces. Our controls of the items made available by the customer carried out upon receipt are merely aimed at checking the quantity and suitability and include a visual check as to visible shipping damages. We shall not be obliged to perform further controls.
(3) In the event of damage to, destruction or loss of the items made available by the customer, we shall only be obliged to indemnify the customer, if the damage is due to our fault. The compensation shall be limited to the purchase of equivalent items. The customer shall bear the costs exceeding the residual value of the items in accordance with the applicable legislation.
(4) Our liability shall not cover fair wear and tear. The customer shall be obliged to take out a special insurance providing adequate coverage for the items made available.
(5) Unless explicitly otherwise set out in the sections 1 to 4 of part XX, the stipulations of the parts I to XIX and XXI of XXIV of these Terms and Conditions shall apply, in particular regarding our liability for defects and consequential damages as well as our pledge rights on the items made available.
XXI. Retention of Title, Insurance, Processing, Assignment, Right of Access, Pledge Rights, Securities
(1) We shall retain ownership of the goods delivered to the customer (retention of title clause) until the complete settlement of the customer’s debts, including all liabilities either accumulated before the signature of an agreement or arising from an existing or newly signed agreement throughout the business relationship with the customer. The retention of title clause shall remain effective, even if single accounts receivable have been booked on a unique current account and its final balance has been acknowledged. Claims from sales shall not be deemed settled as long as any liability from a draft, arising for example from a cheque-draft proceeding, persists.
(2) The customer is expected to carefully treat the merchandise subject to the retention of title clause. The customer shall in particular be obliged to take out an insurance at his own expense providing coverage equivalent to the purchase value of the goods against damages caused by fire, water, storm burglary or theft. If such an event occurs, the customer is required to assign the insurance policy to us. We hereby declare that we accept the assignment. If maintenance work or inspection should be required, the customer shall have it carried out at his own expense.
(3) Any processing of the goods subject to the retention of title clause shall be deemed to be carried out on behalf of our company as manufacturer according to § 950 BGB (German Civil Law) without engaging us. The goods undergoing processing shall be subject to the retention of title clause as set out in the above section 1. If the goods subject to the retention of title clause are processed, connected to or assembled with other items by the customer, we shall retain partial ownership in the new product according to the ratio between the purchase price of the goods delivered by our company and the value of the new products. If the exercise of our ownership rights is compromised by the processing of the goods, the customer shall transfer to us in advance the ownership of the new product according to the purchase price of the goods subject to the retention of title clause or according to the ratio between the purchase price of the goods delivered by our company and the value of the new product. The customer is required to store the merchandise at his expense. Our partial ownership shall involve the rights established in the above section 1.
(4) The customer shall be entitled to sell the goods subject to retention of title in ordinary transactions and according to the normal terms and conditions, provided that he is not in payment default and has assigned the proceeds from the sales to our company in accordance with the provisions of the above sections 5 and 6. The buyer shall not have the right to dispose of the goods in other ways. The use of the goods subject to the retention of title clause for the fulfilment of a works contract shall be deemed to be equivalent to the sale as mentioned above in this section.
(5) The customer shall be obliged to transfer to our company in advance all claims arising from the sales of the goods subject to retention of title. We hereby declare that we accept to assignment. The claims shall provide security in replacement of the retention of title clause as set out in the above section 1. Upon request, the customer has to provide all information regarding the inventory of the goods subject to retention of title and the claims assigned to us.
(6) If the goods subject to retention of title are sold by the customer as part of a new product, the claims arising therefrom shall be assigned to us according to the ratio between the purchase price of the goods supplied by our company and the proceeds from the sale. We hereby declare that we will accept the assignment. If the customer sells products which are subject to our partial ownership as set out in the above section 3, our due part of the proceeds shall be assigned to us. We hereby declare that we will accept the assignment.
(7) The customer shall be entitled to collect proceeds from sales assigned to us, unless we revoke the authorisation for the collection in the cases described in section 8. Upon request, the customer shall however be obliged to give his partners notice of the assignment – unless we do it ourselves – and to provide all information and documents that are required for the collection of the proceeds. Under no circumstances the customer may assign the claims to third parties.
(8) If the customer defaults on payments and if this arouses suspicion that a substantial part of his debts may not settled, we shall be entitled, to prohibit further processing of the products supplied by our company, collect the goods and therefore access the customer’s premises. The customer is deemed to agree in advance to allow our agents to access the property and premises for the purpose of collecting and taking possession of the goods subject to retention of title.
(9) Any factoring agreement shall be void without our explicit consent. The customer may not pawn the goods subject to the retention of title clause or use them as a security for liabilities to third parties. The customer is required to inform us in the event that third party claims may compromise our ownership rights. The purchaser is expected to notify our ownership rights to third parties in the event of seizure or distraint and give us promptly notice to enable us to enforce our ownership rights. If the third party is not able or willing to indemnify us for legal or extra-judicial expenses, the customer shall be held liable for the costs incurred.
(10) If the retention of title clause should not be effective due to the legislation of the foreign country to which the goods have been shipped, the customer shall provide an equivalent security upon request. If the buyer does not meet this requirement, we shall be entitled to claim immediate settlement of all liabilities regardless of the agreed payment dates.
(11) For all claims arising from the agreement, we shall not only have a legal right of pledge but also a contractual right to withhold the goods provided by the customer for processing. The pledge rights may also apply to claims arising from former works, spare part deliveries and other services, if the previous performances are related to the goods made available for processing purposes. The pledge right shall also apply to other claims arising from the agreement, provided that they are uncontested or judicially validated. The provisions of §§ 1204 ff. BGB (German Civil Law) and § 50, section 1, Insolvenzordnung (Insolvency Act) shall apply accordingly.
(12) If the liquidation value of the retained securities exceeds the amount of the outstanding claims by more than 20 %, we shall be obliged to partly return securities at our discretion upon request of the customer.
(1) If the customer gets to knowledge of trade secrets or special know-how of our company during the execution of the agreement, it is required to keep the information confidential and safe and to take suitable precautions to protect and safeguard confidentiality and ensure that the confidential information is only used as far as it is necessary for the execution of the agreement and the subsequent use of the contractual object. In the event of a violation of confidentiality, the customer shall be obliged to prove that it already has had knowledge of trade secrets or corporate know-how prior to the signature of the agreement.
(2) The customer is obliged to treat all commercial and technical details relating to the agreement as trade secrets and deal in a strictly confidential manner with all documents and information provided for the execution of the agreement. The reproduction of such documents is only allowed for contractual purposes and in compliance with the legal provisions regarding intellectual property rights. Confidential information may not be passed on or disclosed to third parties without our written consent.
XXIII. Export Certificate
If the customer, having the registered office outside the Federal Republic of Germany, intends to ship the goods or have them transported by a shipping service provider to a destination in a foreign country, it is required to provide the export documents for tax purposes. If the customer fails to provide the required documents, it shall incur the value added tax on the invoice amount payable for supplies within Germany.
XXIV. Place of Jurisdiction, Applicable Law, Place of Fulfilment, Severability, Privacy
(1) Any controversy between the contracting parties arising out of the agreement shall be brought exclusively before the competent court for our registered office in Aschaffenburg. This shall also apply to disputes arising out of proceedings involving certificates, drafts or cheques.
(2) Any agreement with our company shall be exclusively governed by the German law. Under no circumstances, the provisions of the United Nations Convention on Contracts for the International Sale of Goods, dating from April 11, 1980 (CISG – “Viennese Sales Law”) shall be applied.
(3) The site of our registered office shall be deemed to be the place of fulfilment for all obligations arising out of an agreement with our company.
(4) If a provision of these Terms and Conditions or an agreement should turn out to be ineffective or unenforceable, the other parts of the Terms and Conditions or agreement shall be deemed to remain effective. The contracting parties shall try to replace the ineffective clause by another stipulation which comes as close as possible to the commercial and legal meaning of the original provision being effective and enforceable under the applicable legislation.
(5) We record personal information of the customer relating to the agreement in an electronic data processing system in compliance with the provisions of the “Bundesdatenschutzgesetz” (German Data Protection Act).
General Terms and Conditions of Sale and Delivery (Last update: 2007)