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General terms and conditions

I. Scope

1. The following conditions of sale shall apply to all contracts concluded between the buyer and us in connection with the delivery of goods. They shall also apply to all future business relationships, even where they are not expressly re-agreed. Any deviating conditions of the buyer which are not expressly recognised by us shall not be binding on us even if we do not expressly reject them. The following conditions of sale shall also apply if we fulfil the buyer's order without reservation in full knowledge of the conflicting or deviating conditions of the buyer.

2. The contracts shall set out in writing all the agreements made between the buyer and us with regard to the execution of the purchase contracts.

II. Quotation and conclusion of contract

1. An order placed by the buyer which constitutes an offer to conclude a purchase contract may be accepted by us by means of sending an order confirmation within two weeks or sending the ordered products within the same period.

2. Our quotations shall be subject to change and non-binding unless we have expressly described them as binding.

3. We shall reserve our proprietary rights, copyrights and other property rights over all images, calculations, drawings and other documents. The buyer may only pass these to third parties with our written consent, irrespective of whether we have identified such documentation as confidential.

III. Terms of payment

1. Our prices shall apply ex works exclusive of packaging unless otherwise specified in the order confirmation. Our prices are exclusive of statutory value-added tax. The value-added tax shall be shown separately on the invoice at the rate applicable on the date of invoicing.

2. A cash discount shall only be permitted in the case of a special written agreement between us and the buyer. The purchase price shall be due for payment net (without deduction) immediately on receipt of the invoice by the buyer unless a different payment due date is stated in the order confirmation. A payment shall only be deemed as made when we are able to dispose freely of the amount. In the case of cheque payments, the payment shall only be deemed as made once the cheque has been cashed.

3. In the event that the buyer is in default with a payment, the statutory rules shall apply.

4. The buyer shall only be entitled to an offset, even if notice of defects has been given or counterclaims have been asserted, if the counterclaims have been established as final and absolute, have been accepted by us or are undisputed. The buyer shall only be entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.

IV. Delivery period and time of performance

1. Delivery periods or deadlines which have not been expressly agreed as binding shall be exclusively non-binding details. The delivery period specified by us shall only begin once technical queries have been clarified. Accordingly, the buyer must fulfil all the obligations incumbent upon it correctly and in a timely manner.

2. If the underlying purchase contract concerns a firm deal as defined in section 286 para. 2 no. 4 of the German Civil Code (BGB) or section 376 of the German Commercial Code (HGB), we shall be liable in accordance with statutory provisions. The same shall apply if, as a result of a default in delivery on our part, the buyer is entitled to assert loss of interest in the further performance of the contract. In this case, our liability shall be limited to foreseeable, contract-typical damages, insofar as the default in delivery is not caused by a deliberate breach of the contract for which we are responsible. Fault on the part of our representatives or vicarious agents shall be attributable to us.

Accordingly, we shall be liable to the buyer in accordance with statutory provisions in the event of a default in delivery, insofar as the default in delivery is caused by a deliberate or grossly negligent breach of the contract for which we are responsible. Fault on the part of our representatives or vicarious agents shall be attributable to us. Our liability shall be limited to foreseeable, contract-typical damages, insofar as the default in delivery is not caused by a deliberate breach of the contract for which we are responsible.

3. In the event that a default in delivery on our part is caused by a culpable breach of an essential contractual obligation, where fault on the part of our representatives or vicarious agents is attributable to us, we shall be liable in accordance with statutory provisions, provided that in such a case the liability for damages is limited to foreseeable, contract-typical damages.

4. Otherwise the buyer may, in the event of a default in delivery on our part, assert a claim for lump-sum compensation amounting to 3% of the value of the goods to be delivered for each complete week of the default, up to a maximum of 15% of the value of the goods to be delivered.

5. Any further liability for a default in delivery on our part shall be excluded. Any further statutory claims and rights of the buyer, to which it is entitled in addition to the claim for damages as a result of a default in delivery on our part, shall remain unaffected.

6. We shall be entitled to provide partial deliveries and partial performance at any time, insofar as this is reasonable for the customer.

7. In the event that the buyer is in default of acceptance, we shall be entitled to request compensation for the damages incurred and any additional expenses. The same shall apply if the buyer is guilty of culpable failure to fulfil its obligations to co-operate. In the event of a default of acceptance and/or default of the debtor, the risk of accidental deterioration or accidental destruction shall pass to the buyer.

V. Passing of risk – dispatch/packaging

1. Loading and dispatch shall take place uninsured at the risk of the buyer. We shall endeavour to take into account the wishes and interests of the buyer with regard to the manner of delivery and the delivery route; additional costs thus incurred – even in the case of agreed carriage paid delivery – shall be borne by the buyer.

2. We do not take back transport packaging or any other type of packaging in accordance with the German Packaging Ordinance (VerpackV), with the exception of pallets. The buyer must dispose of the packaging at its own expense.

3. If dispatch is delayed at the request of or through the fault of the buyer, we shall store the goods at the cost and risk of the buyer. In this event, notification of the goods being ready for dispatch shall be considered equivalent to actual dispatch.

4. We shall take out transport insurance to insure the delivery at the request and expense of the buyer.

VI. Warranty/liability

1. Warranty claims made by the buyer shall only exist if the buyer has duly complied with the examination and notification obligations incumbent upon it pursuant to section 377 of the German Commercial Code (HGB).

2. Insofar as the goods have a defect for which we are responsible, we shall be obliged to execute supplementary performance, without prejudice to the rights of the buyer to withdraw from the contract or to reduce the purchase price (reduction), unless we are entitled to refuse to execute supplementary performance under statutory rules. The buyer must set us a reasonable time limit for execution of the supplementary performance. The supplementary performance may be executed by means of rectification of the defect (rectification of defect) or delivery of new goods, at the buyer's option. In the case of rectification of the defect, we shall bear the necessary expenses insofar as these are not increased because the subject matter of the contract is located in a different place to the place of performance.

If the supplementary performance fails, the buyer may, at its own option, request reduction of the purchase price (reduction) or declare its withdrawal from the contract. Rectification of the defect shall be deemed to have failed on the second unsuccessful attempt, insofar as further rectification attempts are not considered appropriate or reasonable for the buyer by reason of the subject matter of the contract.

Claims for damages under the following conditions may only be asserted by the buyer as a result of the defect if the supplementary performance has failed. The right of the buyer to assert further claims for damages under the following conditions shall remain unaffected by this.

3. Warranty claims made by the buyer shall become time-barred one year after delivery of the goods to the buyer, unless we have fraudulently concealed the defect. In the latter case, the statutory rules shall apply. Our obligations under section VI point 4 and section VI point 5 shall remain unaffected.

 

4. In accordance with statutory provisions, we shall be obliged to take back the new goods and/or reduce (reduction) the purchase price even if the necessary time limit is not set, if the buyer's customer, as consumer of the sold new movable property (sale of consumer goods), was able to request that the buyer take back the goods or reduce (reduction) the purchase price as a result of the defect in these goods, or if similar recourse action is taken against the buyer as a result. Moreover, we shall be obliged to compensate the buyer for expenses, including but not limited to transport costs, infrastructure costs, labour costs and material costs, which the latter had to bear with respect to the end consumer in the context of supplementary performance as a result of a defect in the goods for which the risk passed from us to the buyer at the time of passing of risk. The claim shall be excluded in the event that the buyer has not duly complied with the examination and notification obligations incumbent upon it pursuant to section 377 of the German Commercial Code (HGB).

5. The obligation under section VI point 4 shall be excluded insofar as the defect is a result of advertising messages or other contractual agreements which do not originate from us, or if the buyer has issued a special guarantee to the end consumer. The obligation shall also be excluded if the buyer itself was not obliged under statutory rules to exercise warranty rights with regard to the end consumer or did not issue this notice of defects as a result of a claim asserted against it. This shall also apply if the buyer has provided the end consumer with guarantees that exceed the legal scope.

6. We shall bear unlimited liability in accordance with statutory provisions for any loss of life, physical injury or damage to health caused by a negligent or deliberate breach of duty on our part or on the part of our legal representatives or our vicarious agents, and for damage or losses which are covered by the liability under the German Product Liability Act (ProdHG). In the case of damage or losses which are not covered by sentence 1 and which are caused by deliberate or grossly negligent breaches of contract or fraudulent intent on our part or on the part of our legal representatives or our vicarious agents, we shall be liable in accordance with statutory provisions. In this case, however, liability for damages shall be limited to foreseeable, contract-typical damages, insofar as we, our legal representatives or our vicarious agents have not acted with intent. To the extent that we have issued a guarantee of quality and/or durability with respect to the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, in the case of damage or losses which are caused by the lack of the guaranteed quality or durability but do not occur to the goods directly, we shall only be liable if the risk of such damage is clearly covered by the quality and durability guarantee.

7. We shall also be liable for damage or losses which are caused by ordinary negligence, insofar as the negligence concerns the breach of such contractual obligations as are essential to achieving the purpose of the contract (material contractual obligations). We shall however only be liable insofar as the damage or losses are typically associated with the contract and are foreseeable.

8. Further liability shall be excluded irrespective of the legal nature of the asserted claim. This shall also apply in particular to tort claims or claims for compensation for expenses spent in vain instead of performance; this shall not affect our liability in accordance with section IV point 2 to section IV point 5 of this contract. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, associates, representatives and vicarious agents.

9. Claims for damages made by the buyer as a result of a defect shall become time-barred one year after delivery of the goods. This shall not apply in the event of loss of life, physical injury or damage to health caused by us, our legal representatives or our vicarious agents, or if we or our legal representatives have acted with intent or gross negligence or if our simple vicarious agents have acted with intent.

VII. Retention of title

1. Until all receivables that are owed to us by the buyer now or in the future have been paid, including all balance claims from a current account, the delivered goods (goods subject to retention of title) shall remain our property. In the event of a breach of the contract on the part of the buyer, e.g. default of payment, we shall have the right to take back the goods subject to retention of title after setting a reasonable time limit. If we take back the goods subject to retention of title, this shall constitute withdrawal from the contract. If we seize the goods subject to retention of title, this shall constitute withdrawal from the contract. We shall be entitled to dispose of the goods subject to retention of title after taking them back. After deduction of a reasonable amount for disposal costs, the sale proceeds shall be offset against the amounts owed to us by the buyer.

2. The buyer must treat the goods subject to retention of title with care and insure these at replacement value at its own expense against fire damage, water damage and theft. Any maintenance and inspection work that is required must be carried out by the buyer in a timely manner and at its own expense.

3. The buyer shall be entitled to sell and/or use the goods subject to retention of title in the ordinary course of business and in the proper manner, as long as it is not in default of payment. Pledges or transfers by way of security shall not be permitted. The buyer hereby assigns to us as of now by way of security, to the full extent, all receivables arising from resale or another legal basis (insurance, tort) with respect to the goods subject to retention of title (including all balance claims from a current account); we hereby accept the assignment. We authorise the buyer to collect the receivables assigned to us for its own account and on its own behalf. This authorisation shall remain in force until revoked. The collection authorisation may be revoked at any time if the buyer fails to fulfil its payment obligations in the proper manner. The buyer is not authorised to engage in factoring in order to assign these receivables, even for the purpose of collecting the receivables, unless the factor is simultaneously placed under an obligation to transfer the consideration to us, in an amount equal to the receivables, for as long as we still have receivables owing to us from the buyer.

4. Any processing or alteration undertaken by the buyer on the goods subject to retention of title shall be undertaken on our behalf in all cases. If the goods subject to retention of title are processed together with other objects not belonging to us, we shall acquire joint ownership of the new object in proportion to the value of the goods subject to retention of title (final invoice amount inclusive of value-added tax) relative to the other processed objects at the time of processing. The same shall apply to the new object produced by the act of processing as that which applies to the goods subject to retention of title. In the event that the goods subject to retention of title are mixed inseparably with other objects not belonging to us, we shall acquire joint ownership of the new object in proportion to the value of the goods subject to retention of title (final invoice amount inclusive of value-added tax) relative to the other mixed objects at the time of mixing. If, as a consequence of the mixing, the object of the buyer is to be regarded as the main object, the buyer and we agree that the buyer shall transfer to us proportionate joint ownership of this object; we hereby accept the transfer. The buyer shall safeguard our resulting sole or joint ownership of the object on our behalf.

5. In the event of access by third parties to the goods subject to retention of title, in particular in the case of seizures, the buyer shall refer to our ownership and notify us immediately so that we can assert our property rights. Insofar as the third party is not in a position to reimburse us for the judicial or extra-judicial costs incurred in connection with this, the buyer shall be held liable for these costs.

6. We shall be obliged to release the securities to which we are entitled, insofar as the realisable value of our securities exceeds the receivables to be secured by more than 10%. We shall be responsible for deciding which securities will be released.

VIII. Place of performance, legal venue and applicable law

1. The place of performance and legal venue for deliveries and payments (including any action pertaining to cheques and bills of exchange) and all disputes arising between us and the buyer as a result of the purchase contracts concluded between us and the buyer shall be our head office. We shall however also be entitled to bring an action against the buyer in the latter's place of residence and/or place of business.

2. The relationships between the contracting parties shall be subject exclusively to the law applicable in the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods and the Law on the Formation of Contracts for the International Sale of Goods shall be excluded.