General terms & conditions of sale and delivery

1. Quotes, contract conclusions

a) The following general terms and conditions are applicable for contracts, deliveries, services and quotes. Any deviations from these general terms and conditions are applicable only if we confirm the same in writing.

b) The purchase conditions of the buyer are hereby rejected. They will not be recognised even if we do not reject them explicitly after we receive such conditions. To the extent our terms and conditions are aligned with the conditions of the buyer, the clauses in alignment shall be applicable.

2. Prices, price changes

a) The prices are quoted ex works excluding VAT, if it has been agreed otherwise. They are not binding for reorders.

b) If the raw material prices, wages or other economic conditions undergo a significant change between the time of concluding the contract and delivery, we as business persons or other persons have the right in accordance with Article 24 of German Law on General Terms and Conditions to change the prices appropriately 8 weeks after the conclusion of this contract, whereby such change shall correspond to the scope of cost increase incurred by us since the conclusion of this contract. In business transaction with persons, who do not fall under Article 24 of German Law on General Terms and Conditions, we have the right to change the price in the above mentioned scope after 4 months from the conclusion of the contract.

The aforementioned regulations are applicable, if there is change in customs duty, countervailing charges, taxes and other public taxes, which are related to the ordered products.

c) An additional processing fee of 5.00€ shall be collected, if the net product value is below 50.00€.

3. Delivery, force majeure conditions

a) Delivery deadlines and schedules are binding only after our written confirmation. An agreed delivery deadline starts with the date of our order confirmation, but not before the buyer has completed his commitments, especially with regard to any agreed advance payment.

b) Delivery deadlines and schedules are based on the time they are dispatched from the factory. They are deemed as adhered when we send shipping readiness notification, if the products cannot be shipped on time due to reasons not attributable to us. The delivery deadlines extend – regardless of our rights from the default of the buyer – for the period when the buyer is at default with regard to his obligations from this contract. This is also applicable for delivery schedules.

c) The choice of transport method shall be at our discretion without liability for selecting the least expensive shipping mode, if the buyer has not given us any instructions to the contrary.

d) Force majeure conditions give us the right – even within the delay period – to postpone the delivery or implementation in accordance with the period of impediment and an appropriate time of expiry. If the delivery or implementation is not possible due to the circumstances mentioned above, we can withdraw completely or partially from the contract.


 

Claims for losses excluded in this case, unless we have concluded this contract under culpable ignorance of the above force majeure events and/or if we are culpable in not taking due care for avoiding delivery delays. Force majeure conditions are the following - strike, lawful lockouts, import and export bans, lack of raw materials and power supply, fire, significant disruption to the operation and transportation and other circumstances for which we are not responsible, which make the delivery or implementation difficult or impossible regardless of whether such events affect us, our own suppliers or one of their sub-contractors.  The buyer may demand the explanation from us as to whether we would like to withdraw from the contract or deliver within a suitable deadline. The buyer has the right to withdraw from the contract, if we do not provide such explanation.

e) We have the right to refuse the implementation of this contract:

- If the buyer is in arrears with the acceptance or receipt of a delivery or with a payment from a contract concluded with is;

- If we come to know about the significant deteriorations of the assets of the buyer after the conclusion of the contract, unless buyer has made advance payments or has guaranteed payments through other methods acceptable to us (e.g. bank guarantee).

f) In case of on request purchase contracts, the request should be placed within the agreed deadline. If we have agreed for partial deliveries, the request for the same should be made on time. If the request is not placed on time or if a request is placed for inappropriate and large partial quantity, we shall have the right to withdraw from the contract or to demand compensation for losses.

4. Transport

a) The location of the plant shall be the place of delivery. The risk of deterioration or declining conditions of the goods will be transferred to the buyer as soon as the shipment is handed over to the person responsible for transport. The delivery is deemed as completed with the transfer of goods in the plant. This is applicable for self pick-up, freight forwarders as well as own vehicles.

b) In case of reusable transport packagings, we reserve the right to demand the return of transport packaging as well as an appropriate rental interest.

5. Payments, default interest

a) Payments should be made immediately net cash (without any deductions).

b) In case of bills of exchange, the discount charges shall be borne by the buyer and are payable immediately without any deduction. We do not assume any liability for the accurate and timely presentation and protest. Bills of exchange and cheques will be accepted only for the purpose of fulfilment. Discounts are not guaranteed, if the buyer is in arrears for the payment of earlier deliveries.

c) For new customers we reserve the right to demand cash on delivery.

d) Our receivables become due immediately, irrespective of the agreed due date and due date of received and credited bills, when the buyer delays payment of an invoice or if he has arrears two instalments in case of instalment payment. The same is applicable if we come to know of the circumstances, which may impact – based on our business discretion – the creditworthiness of the buyer.


 

In such cases, we have the right to make deliveries only against advance payment irrespective of any legal rights or to demand a suitable surety for such deliveries.

e) We can match off the incoming payment with any of our pending receivables at our own discretion. In case of payment delays, we shall charge default interests with 2% over the respective prime rate of the German Central Bank. In case of payment defaults, we have the right against business people and legal entities under public law to levy default interest rates, at least 2% above the prime rate of the German Central Bank. We reserve the right for asserting further claims against proof.

6. Offset

The buyer may offset our remuneration entitlement only with receivables, which we do not dispute or which have established legally.

7. Retention of title

a) The goods shall remain our property till the complete payment of our outstanding receivables including the account balance in our favour in case of current invoice. In the event of payment through bills of exchange and cheques, the goods shall remain our property till they are redeemed.

b) Treatment or processing of the reserved good shall be done on our account and without any additional charges as well as any obligations for us such that we are acknowledged to be manufacturers within the meaning of Article 950 of German Civil Code. Any processing of goods with any other items not belonging to us or irreversibly connected with such, we shall acquire co-ownership in proportion to the invoice value of our goods in relation to the invoice value of the other process goods. The same shall be applicable for the new goods resulting from processing.

c) The buyer has the right to sell the reserved goods only in proper business transaction. The buyer is allowed hypothecation or chattel mortgage. In case of hypothecation or any other impact to our rights by third parties, we should be informed of such circumstances immediately and we shall receive the support for defending our rights.

d) The buyer’s claims from the resale of reserved goods are hereby transferred to us. The buyer is entitled to the recovery of receivables in a proper business transaction as long as he fulfils his payment obligations in accordance with the contract.

e) In case of any significant deterioration in the financial position of the buyer, especially with regard to payment delay, suspension of payment, initiation of bankruptcy or insolvency proceedings, direct debit mandate granted to the buyer shall expire. In this case, we also have the right to withdraw from the contract and demand the surrender of the reserved goods. The buyer shall reimburse us for the costs of pick-up and the depreciation of reserved goods. He shall also send us a detailed listing of the existing reserved goods and a list of claims transferred to us through third party debtors. Irrespective of this, we have the right to undertake any discoveries with the buyer to protect our rights. In particular, we shall have the right to enter the warehouse premises and review all the required documents and books.


 

f) We shall release the securities transferred to us at our own discretion, when the value of such securities exceeds our receivables by more than 20%.

8. Warranty

a) Complaints of the buyer with regard to any obvious and visible defects should be communicated to us in writing within 14 days after the receipt of goods. Complaints regarding hidden defects should be raised within the legally permitted warranty period. To the extent the buyer is a person in sense of Article 24 of German Law on General Terms & Conditions (business man, legal entities under public law etc.), he may raise a complaint against hidden defects only within 14 days. The goods are deemed as approved if complaints are not raised in a timely manner.

b) In case of a justified complaint, we are entitled to receive a suitable deadline to remedy the defect or to deliver a replacement, wherein such deadline should consider the time for procuring goods from our own suppliers. If such a remedy or replacement of goods is not successful, the buyer may demand an appropriate reduction in the purchase price or reversal of the contract.

c) Disputed goods may be returned to us only with our approval or if we acknowledge the warranty claim for these goods.

d) The warranty claims are not applicable, if

- the buyer refuses our right to carry out remedial work or replacement or

- the buyer remedies the defect on his own without our written consent or when he has such defects fixed by third parties, if our attempts for rework or replacement have not failed.

e) To the extent it is not agreed otherwise in the following, any other claims of the buyer – regardless of the legal reasons – are ruled out. Therefore, we are not liable for damages, which were not caused by the delivered product itself. In particular, we are not liable for any lost profits or other asset losses of the buyer.

f) The above exemption from liability is not applicable, if the damages were caused intentionally or due to grossly negligent conduct. They are also not applicable, if there was a guaranteed characteristic covering the risk of consequential loss in accordance with Articles 463, 480 (2) and 635 of German Civil Code and the defects were due to the absence of such characteristic.

g) To the extent we intentionally violate a contractual obligation, our obligation for replacement for the material and personal losses shall be limited to the coverage amount of our product liability insurance.

h) The warranty period shall be 12 months for a single shift operation calculated from the time of risk transfer. This period is a statute of limitation and is also applicable for claims for replacement of defects, if no other claims are asserted from unauthorised action.


 

i) For replaced parts, spare parts and parts installed later, a warranty period of 6 months but till the expiry of original warranty period according to the previous paragraph shall be applicable.

j) Replaced and returned parts shall remain our property. The freight, packaging and other costs for return shall be borne by the customer.

9. Return of spare parts

Spare parts with a value of more than € 50.00 net can be returned only against a restocking fee of 15% and they should be returned in original packaging within 14 days after delivery. Special productions and orders cannot be returned. The customer shall bear the freight, packaging and other costs for the return of goods.

10. Liability

a) We are liable for losses resulting from unauthorised handling, negligence in concluding the contract, positive contractual violation, incapability to provide services or due to delay only if these were caused by persons authorised by us or our vicarious agents intentionally or due to gross negligence, irrespective of the provision in accordance with Article 831 (1) (2) of the German Civil Code. This is also applicable for any claims for the replacement of direct and/or subsequent losses. The liability exclusion shall not be applicable in case of our inability to fulfil the contract or in case of violation of significant contractual obligations (major obligations) or due to liability in accordance with Product Liability Act.

The limitation of liability is not applicable if a warranty in accordance with Articles 463, 480 (2) and 635 of the German Civil Code from our side aims to protect the buyer from the consequential losses.

b) To the extent we have excluded or limited our liability, the same shall be applicable for the personal liability of our employees or other vicarious agents.

11. Applicable law

All the disputes shall be decided based on the material laws of the Federal Republic of Germany. The application of uniform laws regarding international purchase of movable goods as well as the conclusion of international purchase contracts on movable goods is hereby excluded, even if the buyer has his headquarters overseas.

12. Jurisdiction

Papenburg shall be the sole place of jurisdiction if the buyer is a person in sense of Article 24 of German Law on General Terms and Conditions (businessmen, legal entities under public law). The buyer, who is not a general merchant, can be sued within this jurisdiction, if he does not have any domestic office or if such information is known at the time of filing a complaint.