General conditions of supply and payment

§ 1 General conditions

1. Our conditions of sale apply exclusively, and any customer conditions of sale which conflict with ours or are at variance with them are not recognised unless a specific agreement is made in writing. Our conditions of sale also apply if we make unconditional deliveries to the customer in the full knowledge of conflicting or varying conditions of sale.
2. Our conditions of sale apply to all future business with the customer.

§ 2 Offers

1. Our offers are subject to alteration in all parts.
2. We retain title and copyright over all illustrations, drawings, calculations and sundry other documents. The said documents shall not be made available to third parties without our specific written agreement.
3. Unless any other agreement is reached, the relevant DIN-standards apply to the contractual relationship; the following standards apply in particular:
   DIN 2088 and 2089 (sheet 1/2 for calculations), DIN 2076, 2095 (wires) and DIN 7168 (stamping) with relation to quality and condition.

§ 3 Prices and conditions of payment

1. Unless the contractual agreement specifies otherwise, our prices are “ex-works” excluding of packaging; this will be invoiced separately.
2. All prices listed by us are net prices; they do not include VAT. This is charged at the statutory rate applicable on the day of invoicing.
3. Unless the contractual agreement specifies otherwise, the undiscounted invoice total shall fall due within 30 days of the date of invoice. If the customer falls behind with payment, we shall be entitled to charge interest at a rate that is 2% higher than the current Federal German Bank rate. Both we and the customer shall be entitled to prove that greater, lesser or no damage at all has been occasioned by the delay in payment.
   The customer shall not be entitled to the deduction of discount without specific written agreement.
4. The customer shall be entitled to off-setting rights, only if his counter-claims shall have been proven to be valid in law, or if we shall have acknowledged them or raised no objection to them. Moreover the customer shall be entitled to claim rights of retention only insofar as his counter-claims rest on the same contractual relationship as the claim for payment.

§ 4 Supply and lead time

1. The start of the agreed delivery time is subject to clarification on all technical points.
2. If we fall behind in supply for reasons for which we are responsible, then customer’s claims for damage-indemnification shall be limited to ….. % of the value of the goods supplied for every complete week of delay, up to a maximum of ….. % of the value of goods. The limitation shall not apply if the delay is intentional or is due to gross negligence.
3. If we fall behind with delivery and the customer grants us a reasonable period of grace while giving notice of refusal, he shall be entitled to withdraw from the contract if the period of grace elapses without result. The customer shall be entitled to indemnification for non-fulfilment of the contract for the amount of the damage predictable only if the delay is intentional or is due to gross negligence. Liability for indemnification shall be limited to 50% of the damage incurred.
4. The limit on liability under sections 2 and 3 shall not apply if a business transaction with a fixed date was made. The same is valid if the customer is able to claim that, because of the delay occasioned by us, his interest in the fulfilment of the contract shall have lapsed.
5. If the customer is in default of acceptance or if he fails to meet his obligations on co-operation, we shall be entitled to demand compensation for damages which we have incurred inclusive of any supplementary expenditure. In such a case, the risk of any accidental loss or accidental deterioration of the sale item shall pass to the customer, during the period in which he is in delay of acceptance.

§ 5 Transfer of risk

1. Unless the contractual agreements specify otherwise, delivery is agreed as being “ex-works”. This also applies, if at the request of the customer the object of sale is sent to another address. Risk then passes to the customer when the object of sale is transferred to the carrier.
2. If the customer so requires, deliveries may be covered by transport insurance. All costs involved are borne by the customer.

§ 6 Warranty

1. The customer’s rights of warranty require that he shall have met his obligations to inspect goods and report back in conformity with §377, 378 HGB.
2. If there is a defect in the object of sale for which we are responsible, we are entitled to remedy the defect or replace the item as we see fit. If we remedy the fault, we undertake to bear the costs of all expenditure involved in such remedy, in particular transport, haulage, labour and material costs, provided these do not arise, because the object of sale was taken to place other than to the place of performance.
3. If we are not prepared to remedy the defect or provide a replacement, or if we are not in a position to do so, or if we are delayed in so doing beyond a reasonable period of time for reasons for which we are responsible, or if repair or replacement fails to take place for other reasons, the customer shall be entitled to cancellation of the contract or to a reduction in price.
4. Unless otherwise specified hereafter, further claims by the customer – for whatever legal reasons – are precluded. We are not liable for damages which do not arise out of  the delivery item itself; in particular we are not liable for loss of profit or any other financial loss of the customer.
   The above exemption from liability does not apply, if the cause of damage is deliberate or due to gross negligence. Furthermore, it shall not apply if the customer, because of the lack of an assured property, makes claims for indemnification because of non-fulfilment under §§ 463, 480 Section 2 BGB.
   The above exemption from liability shall furthermore not apply for such damage as is caused by the culpable breach of substantive contractual obligations; if there is no question of intent or gross negligence, our liability shall be limited in such a case to an amount of damages foreseeable under this type of contract.

§ 7 Corporate liability

1. Any further liability for indemnification beyond that foreseen in § 6 is – without regard to the legal nature of the claim made – precluded. This rule does not apply to claims which are made against us under §§ 1 and 4 of the law on defective products. This also applies in the case of initial insolvency or impossibility of performance of contract.
2. To such an extent as we accept no liability or only limited liability, this also applies to the personal liability of our salaried workers, employees, staff-members, representatives, servants and assistants.

§ 8 Retention of title

1. We retain title of the object of sale until payment has been made in full, including all incidental costs (freight, packaging, etc.). If the customer is in breach of contract, in particular through falling behind with payment, we shall be entitled to take back the object of sale. Taking back the object of sale shall not imply withdrawal from the contract, unless we shall have made an express declaration of this in writing. Any seizure of the object of sale by us shall invariably imply withdrawal from the contract, unless we shall have made an express declaration of this in writing. Any seizure of the object of sale by us shall invariably imply withdrawal from the contract. We shall be entitled to use the object of sale after its return; the realization proceeds remaining after deduction of appropriate realization costs are to be set off against the customers obligations.
2. The customer shall undertake to treat the object of sale with all due care. He shall insure it at cost by himself against fire, flood and theft to its full replacement value. The customer shall carry out servicing and maintenance work at cost to himself as necessary.
3. In the case of seizure or other action by third parties, the customer shall undertake to inform us without delay. The customer shall furthermore undertake to support us fully in all claims for our rights both in-court and out-of-court, and in particular shall make all necessary documentation available to us.
4. The customer shall be entitled to resell the object of sale in the normal course of his business; he shall, however, transfer to us all payments up to the value of the total amount of our invoice accruing to him from the re-sale to his customer or to third parties. This transfer is independent of the question of whether the object of sale has been re-sold with or without further reprocessing. We herewith accept this transfer. The customer shall be entitled to the payment of the debt in the ordinary course of his business. This entitlement shall lapse if the customer fails to meet his obligations to pay out of the proceeds received, or if he falls behind with payment. It further lapses, if an application is made for the opening of composition or bankruptcy proceedings against the customer’s assets or if the customer ceases to make payment.
   In such cases we shall be entitled, to collect the transferred sum owing. The customer shall undertake to pass to us all information relating to the collection and to make available to us all the necessary documents. In such a case, the customer shall further undertake to inform the debtors (third parties) of the transfer.

1. The processing or conversion of the object of sale by the customer shall always be undertaken on our behalf. If the object of sale is processed with items not supplied by us, we shall acquire joint ownership over the new item in proportion to the value of the object of sale to the other items processed at the time of processing. The same applies to the item resulting from processing as to the item supplied under retention of title.
2. If goods supplied by us are combined or inseparably mixed with items which do not belong to us, we shall acquire joint-ownership of the new item in proportion of the object of sale to the other items combined. If the combination is carried out in such a way that the item belonging to the customer is seen as the main good, then it is agreed that the customer shall transfer to us a proportion of the joint-ownership. The customer shall conserve the sole-ownership or joint-ownership so arising on our behalf.
3. We undertake to release securities to which we are entitled at the request of the customer to the extent that the value of our securities exceeds the value of the payment to be covered by more than 20 %; the choice of securities to be released shall be ours.

§ 9 Place of performance, governing law and place of jurisdiction

1. Unless the contract specifies otherwise, the place of performance shall be the head office of our company.
2. In all commercial transactions with us, the law of the Federal Republic of Germany shall apply exclusively. The CISG (UN-Sales law) shall not apply.
3. If the customer is a registered trader, the place of jurisdiction shall be our head office. We shall however be entitled to institute legal proceedings against the customer at his general place of jurisdiction.

 

As at: February 2001