AGB – General Terms and Conditions of Business

General Terms and Conditions of Business

Important note: The following translation of our German Terms and Conditions of Business is provided purely as a guide and has no legal relevance. The German language version of our General Terms and Conditions of Business (AGB) is binding (German AGB).

General Terms and Conditions of Business

I. Scope

1. The following Terms and Conditions of Sale shall apply to all contracts between the buyer and us concerning the supply of goods. They shall also apply to all future business relations, even if not expressly agreed upon once again. Variant terms and conditions of the buyer which are not expressly recognised by us shall not be binding upon us, even if we do not expressly object to them. The following terms and conditions of sale shall apply even if we carry out the buyer’s order unconditionally in the knowledge of contrary or variant terms and conditions of the buyer.

2. All covenants reached between the buyer and us concerning the execution of the purchase contracts shall be set down in writing in the contracts.

II. Offers and Conclusion of Contracts

1. We may accept any order from the buyer which can be qualified as an offer to conclude a purchase contract by sending an order confirmation within two weeks or by shipping the ordered products within the same period.

2. Our offers shall be non-binding and subject to change, unless we have expressly designated them as binding.

III. Copyright/Contractual Penalty

1. We hereby reserve the title, copyright and all other property rights to all pictures, calculations, drawings and other documents. The buyer may only pass such pictures, etc. on to third parties with our express written consent, irrespective of whether or not such pictures, etc. are identified as confidential.

2. If the buyer infringes the above agreement, we may demand a contractual penalty of EUR 5,000 for each infringement. This shall be without prejudice to the right to claim any further damages, in which case the contractual penalty shall be offset against such damages.

IV. Payment Terms

1. Our prices are ex works and do not include packaging, unless stipulated otherwise in the order confirmation. Our prices do not include the applicable value-added tax.

2. A cash discount shall be admissible only if there is a separate written agreement between us and the buyer. Where the order confirmation does not specify a different payment period, the purchase price shall be due net (without deductions) immediately on receipt of the invoice by the buyer, but no later than 10 days after the invoice date.

3. The buyer shall only be entitled to assert a right of retention or a right of set-off if the counterclaims have been established as final and absolute, have been recognised by us or are undisputed. The buyer shall only be authorised to exercise a retention right if the buyer’s counterclaim is based on the same contractual relation.

4. Partial deliveries shall be invoiced immediately and shall be payable after delivery.

V. Delivery and Performance Period
1. Delivery periods or deadlines not expressly agreed as binding shall only constitute non-binding specifications. (The delivery period specified by us shall only commence when all technical issues have been clarified.) Likewise, the buyer must duly fulfil all obligations incumbent upon it in time.

2. If the underlying purchase contract involves a fixed-date transaction, the buyer must specifically state this and stipulate that the offer is no longer binding after expiry of the agreed period.

3. If we default on delivery, our liability for damages shall be excluded in cases of slight negligence. In all other cases we shall assume liability in accordance with the statutory provisions, subject to the proviso that in such case liability for damages shall be limited to foreseeable, typically occurring damage.

4. We shall be entitled to effect partial deliveries and performance, provided this is reasonable for the customer.

5. Should the buyer delay acceptance of the goods, we shall be entitled to demand compensation for any losses and additional costs incurred. The same shall apply if the buyer culpably breaches its duty to cooperate. The risk of accidental deterioration and of accidental loss shall pass to the buyer on default in acceptance or default in payment.

VI. Transfer of Risk – Dispatch/Packaging

1. Except as otherwise stated in the order confirmation, deliveries shall be agreed “ex works”.
The risk of any kind of deterioration, including accidental loss, shall pass to the buyer when the goods are delivered to the appointed carrier, but at the latest when they leave the works/warehouse.

2. Loading and shipping shall be effected uninsured and at the buyer’s risk. Freight costs shall be borne by the buyer.

3. Transport and any other packaging that complies with the Packaging Ordinance (Verpackungsverordnung) shall not be taken back; this does not apply to pallets. The buyer shall be obliged to provide for the disposal of packaging at its own expense.

4. If shipment is postponed at the buyer’s request or through the buyer’s fault, we shall store the goods at the buyer’s expense and risk. In this case notification that the goods are ready to be shipped shall be equivalent to the actual despatch of the goods.

VII. Warranty/Liability

1. Defect claims of the buyer shall only exist if the buyer meets the inspection and defect reporting duties incumbent upon it pursuant to § 377 of the Commercial Code (HGB).

2. In the event of a defect in the goods for which we are responsible, we shall be obliged to render supplementary performance – to the exclusion of any rights of the buyer to withdraw from the contract or reduce the price (reduction of purchase price) – unless we are entitled by law to refuse to effect supplementary performance. The buyer must allow us an appropriate period to provide supplementary performance. Where a defect is rectified, we shall bear the necessary expenses, unless these increase because the pertinent goods are at a location other than the place of performance. If supplementary performance fails, the buyer may at its option demand a reduction of the purchase price or withdraw from the contract. Subsequent improvement shall be considered to have failed upon two unsuccessful attempts, except where further attempts at subsequent improvement appear appropriate and reasonable for the buyer.

3. Claims for damages due to defects can only be made by the buyer under the following conditions once supplementary performance has failed. Unless otherwise stipulated in paragraph No. 4 below, any more extensive claims of the buyer – for any reason whatsoever – shall be excluded. We shall not be liable for damage which is not caused to the delivery item itself; in particular, we shall not be liable for any loss of profit or other financial losses of the buyer.

4. In the event of intent and gross negligence, we shall be liable in accordance with the statutory provisions. If we culpably breach a material contractual obligation or a “cardinal obligation”, liability shall be limited to damage which is typically foreseeable under the contract; in all other cases liability shall be excluded pursuant to par.

5. Any further liability shall be excluded without regard to the legal nature of the claim which is asserted; this shall apply in particular to claims in tort and claims for compensation of futile expenses in lieu of performance. Where our liability is excluded or limited, this shall also apply to the personal liability of our employees, collaborators, representatives and vicarious agents.

6. It is pointed out that we are not the manufacturer of the product.

7. Damage compensation claims of the buyer due to defects shall lapse one year after the delivery of the goods. This shall not apply in the event of injury to life, limb or health which is our fault or that of our legal representatives or vicious agents, or if we or our legal representatives have acted intentionally or with gross negligence, or if our simple vicarious agents have acted intentionally.

VIII. Retention of title

1. Until fulfilment of all claims (including all claims to balances from current accounts) to which we are entitled now or in the future against the buyer, the delivered goods shall remain our property (goods subject to retention of title). In the event of conduct by the buyer in breach of contract (e.g. default in payment), we shall be entitled to take the goods subject to retention of title back, after having previously established a reasonable grace period. If we take the goods subject to retention of title back, this shall constitute withdrawal from the contract. If we attach the goods subject to retention of title, this shall constitute withdrawal from the contract. We shall be entitled to sell the goods subject to retention of title after taking them back. After deducting a reasonable amount as selling costs, the sale proceeds shall be credited towards the amounts owed to us by the buyer.

2. The buyer must treat the goods which are subject to retention of title with care and insure them at its own expense against fire and water damage and theft in an amount sufficient to cover the reinstatement value. Necessary maintenance and inspection work must be carried out by the buyer in good time and at its own expense.

3. The buyer shall be entitled to duly sell and/or use the goods subject to retention of title in the course of business, provided it is not in default in payment. No pledges or assignments by way of security may be made. The buyer hereby assigns to us in advance by way of security the full scope of any claims concerning the goods subject to retention of title (including all claims to balances from current accounts) arising from resale or on any other legal grounds (insurance, unlawful act); we hereby accept such assignment. We hereby revocably authorise the buyer to collect in its own name the accounts receivable assigned to us. The authorisation in respect of collection may be revoked at any time if the buyer fails to properly fulfil its payment obligations. The buyer shall not be allowed to cede and assign such claim under any circumstances, not even in the context of factoring, unless the factoring party simultaneously undertakes to effect the counter-performance amounting to the portion of our claim directly to us as long as we still have claims against the buyer.

4. Any processing or transformation of the goods subject to retention of title by the buyer shall be performed for us. If the goods subject to retention of title are processed with other goods which are not owned by us, we shall acquire joint ownership of the new object based on the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the value of the other items used, at the time of the processing. The provisions applying to goods subject to retention of title shall likewise apply to the new object resulting from such processing. If the goods subject to retention of title are inseparably mixed with other goods which are not owned by us, we shall acquire joint ownership of the new object based on the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the value of the other items used, at the time of the mixing. If, as a result of the mixing, the buyer’s item is deemed to be the principal object, we and the buyer agree that the buyer shall transfer proportionate co-ownership of this item to us; we hereby accept such transfer. The buyer shall hold our resulting exclusive or joint co-ownership in safekeeping for us. In the event of any action of third parties against the goods subject to retention of title, especially levy of execution, the buyer shall point out our ownership and notify us without delay so that we can assert our ownership rights. Where the third party is unable to recompense us for any legal or extra-judicial costs incurred in this context, the buyer shall bear liability for these.

5. We shall be obligated to release the collateral to which we are entitled if the realisable value of our collateral exceeds the claims to be secured by more than 10%; in such case we shall be responsible for selecting the collateral to be released.

IX. Place of Performance; Place of Jurisdiction; Applicable Law

1. The place of performance and place of jurisdiction for deliveries and payments (including suits filed in connection with cheques and bills of exchange) and all disputes arising between us and the buyer based on the purchase contracts concluded between us and the buyer shall be our registered office / Cham. We shall also be entitled, however, to bring an action against the buyer at its domicile and/or registered office.

2. The relations between the Parties shall be determined exclusively in accordance with the law of the Federal Republic of Germany. The application of the Uniform Law on the International Sale of Goods and of the Law on the Formation of Contracts for the International Sale of Goods is hereby excluded.

X. Severability clause

1. If individual provisions of the contract with the ordering party including these General Terms and Conditions of Business are or become invalid either in whole or in part, this shall not affect the validity of the remaining provisions.

2. The fully or partially invalid provision shall be replaced by a provision whose economic objective comes as close as possible to that of the invalid one.

3. Any waiver of these General Terms and Conditions of Business shall require written form.
This shall also apply to this clause on written form.