1. Preface
1. All deliveries shall be performed on the basis of the sales/delivery terms set forth below. Said terms shall govern all offers and agreements. They shall be deemed acknowledged once an order is placed or a delivery accepted, and shall remain in effect for the entire duration of the business relationship. Any deviating terms, insofar as not expressly acknowledged in writing, shall not be binding upon the seller, even if he fails to raise an explicit objection.
2. Orders shall become binding for us once we do any of the following: confirm the order in writing; perform unconditional delivery; send out the corresponding invoice, bill of delivery or suchlike. Our sales representatives shall be authorized to act as intermediaries, but not to conclude transactions in our name.
3. No oral arrangements have been made outside this agreement.
4. The following terms shall apply exclusively to “businessmen” as defined by § 14 of the German Civil Code (BGB).
5. Our offers shall always be subject to confirmation, unless the order confirmation specifically provides otherwise.
2. Prices – payment terms
1. Insofar as the order confirmation does not otherwise provide, prices shall be “ex works” and shall not include transport packaging, which shall be billed separately. Prices shall also not include value-added tax, which shall be itemized separately on each invoice, using the legally mandated rate as of the date of billing.
2. Payment must be received without deduction within 30 days of the billing date. Discounts must be specified in writing to be valid.
3. If the purchaser defaults on his payments, we will be entitled to accelerate payment of all our receivables. We will also be entitled to demand a prepayment or a surety guarantee. Overdue payments shall accrue penalty interest in the amount of 8 % above the base lending rate. We reserve the right to assert claims for any additional damages.
4. The purchaser may assert an offsetting counterclaim only insofar as it is undisputed or validated in a court of law. He may assert the right of retention only insofar as it is based on claims arising from the purchase agreement.
3. Delivery
1. All delivery date and deadlines (which can be agreed on either a binding or a tentative basis) must be set forth in writing. Delivery deadlines shall be reckoned as of the date the purchase agreement is ratified.
2. We shall be liable for delivery delays to the extent provided for by law, insofar as a delay is caused by an intentional or grossly negligent contractual breach on our part (or on the part of our representatives or vicarious agents). Insofar a delivery delay is not caused by an intentional or grossly negligent contractual breach on our part, our liability shall be limited to such damages as were foreseeable and typical. We shall also be liable to the extent provided for by law insofar as a delivery delay is caused by our breach of a cardinal contractual duty; in this case, our liability shall be limited to foreseeable and typical damages. We will also be liable for a one-off penalty of 3 % of the value of the merchandise to be delivered for each elapsed week of delay (but not to exceed 15 %).
3. In case of force majeure or other events that prevent us from delivering ordered merchandise on the agreed date or by the agreed deadlines for no fault of our own (e.g. strikes, lockouts, operating disruptions, adverse weather, traffic disruptions, delayed arrival of resources or equipment, military conflict or decrees from a higher authority), we shall be entitled to postpone delivery or performance for the duration of the hindrance in question, plus a reasonable grace period. If the hindrance results in a postponement of more than four months, the purchaser shall be entitled to rescind the purchase agreement. Other rights of rescission shall remain unaffected.
4. The purchaser shall be obligated to take acceptance of ordered merchandise. If the purchaser defaults on acceptance, we will be entitled to a claim for any resulting damages.
5. Insofar as pick-up is to be performed by the purchaser or a hired carrier, the agreed schedule must be adhered to. If a pick-up appointment for merchandise cleared as being transport-ready is not kept, we will be entitled to dispose of said merchandise the next day. The purchaser shall bear any additional costs resulting from delayed pick-up or delayed provision of freight transport. Insofar as the purchaser fails to adhere to the agreed delivery dates and deadlines for an order involving multiple deliveries, we will give him a reasonable deadline in which to correct. If he fails to correct by the deadline, we will be entitled to do any of the following: deliver the remaining merchandise; rescind the portion of the contract not yet fulfilled; claim damages for non-performance.
6. We are entitled to make partial deliveries. Such deliveries shall be deemed separate transactions. If the order calls for multiple partial deliveries, the purchaser must retrieve and accept the merchandise in roughly equal lots, more or less evenly distributed over the acceptance period. If no acceptance period was specified beforehand, a reasonable time window shall apply.
4. Transfer of risk
1. The risk of loss shall pass to the purchaser at such time as the merchandise is either shipped off or handed over to an independent carrier for shipment, or when the merchandise leaves the seller’s warehouse for purposes of shipment (whichever is earliest).
2. Insofar as the purchaser makes a timely request for transport insurance, we will arrange for a corresponding policy at the purchaser’s expense.
5. Liability for quality defects
1. Any representations made with regard to a product’s characteristics, shelf life, etc. shall be deemed to be stand-alone guarantees only insofar as they were specifically agreed and defined as such. We assume no warranty for end products to be produced from components delivered by us. Specifically, we will not be liable for the functionality or serviceability of such products. The usage, application, and processing of our products occur outside of our control, and are therefore the sole responsibility of the purchaser. Although we provide user instructions based on our best judgment, such instructions shall not be deemed binding. The purchaser shall be responsible for verifying that the products delivered by us can be used for the purposes/procedures which he intends without impinging upon third-party property rights.
2. The limitation period for quality defects shall be one year for newly manufactured products. Second-hand merchandise shall be sold “as-is”, without any warranty for quality defects.
3. A purchaser’s claim to have a defect corrected shall initially be limited to a claim for supplementary performance (i.e. a rectification or replacement). We shall be entitled to choose between providing rectification or replacement. If our attempt at rectification or replacement falls short, the purchaser shall be entitled to either demand a price reduction or rescind the contract. Rectification shall be deemed to have fallen short if and insofar as the deadline given to us for the completion of supplementary performance expires without success. The prerequisites for exercising the right of rescission shall be governed by § 323 of the German Civil Code (BGB).
4. We shall be liable to the legally mandated extent for damage claims of the purchaser, insofar as these are based on fraudulent, intentional or grossly negligent conduct on our part (or on the part of our representatives or vicarious agents). Insofar as we are not being charged with an intentional contractual breach, our liability shall be limited to such damages as would be typical and foreseeable. Any further liability for damages on our part shall be excluded; thus, we will specifically not be liable for loss events other than those directly affecting the delivered merchandise, unless they involve death, injury and/or impairment of health.
5. Insofar as we must provide rectification, we shall bear all expenses associated with the remedial action required, including transport, shipping and handling, labor and materials; but only to the extent that such additional costs are not caused by transporting the merchandise to some location other than the place of performance.
6. Before the purchaser shall be entitled to assert any claims based on a quality defect, he must first properly and timely fulfill his obligations to inspect and make complaint as provided under § 377 of the German Commercial Code (HGB).
6. Re-seller’s recourse
1. Insofar as the purchaser re-sells merchandise purchased from us to consumers as a regular part of his business operations, and insofar as the purchaser is forced to take back some of this merchandise or reduce its selling price due to some defect therein, the purchaser’s right to assert a claim for defects against us shall not be subject to a deadline.
2. The purchaser may also claim reimbursement of expenses that he is required to bear for the benefit of the consumer, insofar as the defect claimed by the consumer was already extant at the time risk of loss passed to the purchaser. Such reimbursable expenses shall include transport, shipping and handling, labor and materials.
3. In the context of this re-reseller’s recourse, the purchaser shall not be entitled to claim damages.
4. The above provision shall not affect the purchaser’s obligation under § 377 of the German Commercial Code (HGB).
7. Reservation of title
1. In our capacity as the seller, we will retain ownership of sold merchandise until such time as all receivables owed to us under the corresponding purchase agreement have been satisfied. Insofar as the purchaser is a “merchant” as defined by the German Commercial Code (HGB), we will retain ownership of all delivered merchandise until all payments arising from the business relationship have been received.
2. The purchaser shall be entitled to re-sell merchandise supplied by us in the course of his regular business operations; however, the purchaser shall hereby assign to us the receivables arising from his re-sale to customers or other third parties, namely in a volume sufficient to offset the final invoice amount (including VAT) owed to us for purchased merchandise. The foregoing shall apply regardless of whether the purchaser re-sells the merchandise with or without further processing. The purchaser shall remain entitled to collect his receivables, even after they have been assigned. Our right to collect the assigned receivables ourselves shall remain unaffected, however. We hereby undertake not to collect assigned receivables ourselves, so long as the purchaser meets all his contractual payment obligations and does not become subject to insolvency proceedings. If the purchaser defaults or does become subject to insolvency proceedings, he must, upon our request, take the following action: fully disclose to us all information we require to collect the assigned receivables; turn over to us all relevant documents; inform the relevant debtors (third-parties) that their liabilities have been assigned to us.
3. Any processing or modification of products supplied by us shall be deemed to occur for our benefit. Insofar as processing involves combining our products with other products not belonging to us, we shall automatically obtain co-ownership in the new hybrid product, according to the pro-rata value of our input products in relation to the other input products at the time of processing. Furthermore, a new product generated by processing shall be treated analogously to a product delivered under reserve. If products supplied by us are irretrievably commingled with other products not belonging to us, we shall automatically obtain co-ownership in the new, commingled product according to the pro-rata value of our products in relation to the other commingled products. If the commingling occurs in such a way that the product of the purchaser can be deemed the primary part, then the ordering party shall transfer a pro-rata, joint-ownership share to us. The sole-ownership or co-ownership share thus created shall remain in the ordering party’s safekeeping on our behalf.
4. Insofar as the total of the surety guarantees exceed the value of the receivables to be guaranteed by more than 20 %, the seller shall be obligated to release the excess surety amount at the purchaser’s request. We shall be entitled to choose the specific surety guarantees to be released.
8. Altered circumstances of the purchaser
1. If the purchaser suffers a severe decline in financial position, if he disposes of merchandise that we have delivered under reservation of title outside the scope of his normal operations, or if he liquidates his business, we will be entitled to do take any or all of the following actions: accelerate payment of all receivables owed to us; buy back bills of exchange at the purchaser’s expense; demand prepayments or surety guarantees before making any further deliveries.
2. If the purchaser defaults on payment, runs up excessive debt or becomes subject to insolvency or composition proceedings with regards to his assets, we will be entitled, at our discretion, to either assert the foregoing rights or to rescind the agreement according to the legally mandated procedure.
9. Data privacy
We will be entitled to electronically store and process all data regarding the purchaser in the context of the business relationship, insofar as this is done for purposes of contractual fulfillment and does not contravene the stipulations of the German Federal Data Privacy Act (BDSG).
10. Legal venue – place of performance – applicable law
1. The place of performance for all deliveries shall be the supplier’s works or warehouse. The location of our administrative headquarters in 50226 Frechen, Germany shall be the place of performance with regard to all other rights and duties.
2. Insofar as the purchaser is a merchant as defined by the German Commercial Code (HGB), a legal entity under public law or a public separate estate, the legal venue shall be Frechen, Germany. In this case, we will also be entitled to bring legal action at the purchaser’s place of domicile.
3. This agreement shall be subject exclusively to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for International Sale of Goods (CISG) shall be excluded.
4. If any provision of our sale and purchase terms should be invalid, this shall not affect the validity of the remaining contractual provisions. An invalid provision shall be replaced by the corresponding provision set forth by law.
Effective as of: 07/2007