Terms of Business

General Standard Terms and Conditions

October 2002

1. General

1.1. The rights of the supplier and customer inter se shall be governed by these Terms and Conditions exclusively. Any other stipulations shall be effective only if agreed in writing. This also applies to amendments or additions to these Terms and Conditions.

1.2. Customer’s contrary terms of purchase shall be excluded even if we do not expressly oppose them in a particular case.

1.3. Our offers are without obligation. They are not accepted until we issue a written acknowledgment of the order.

2. Prices and Terms of Payment

2.1. Customers who are not ultimate consumers will be charged our current list prices on the date of delivery unless a firm price has been agreed and unless the deliveries and services are rendered within 4 months from conclusion of the contract. In the absence of a special agreement, prices are ex works inclusive of loading but exclusive of packing and in each case plus VAT at the rate current at the time.

2.2. In the absence of a special agreement, payment shall be made in cash without deductions at our paying office. Save as otherwise agreed payment shall be made within 30 days from date of invoice without deductions and, if payment is made within ten days from date of invoice, less a 2% discount. Initial deliveries may be made on a cash-in-advance basis only.

2.3. If the customer is in arrears of payment of outstanding invoices we shall be entitled to make the delivery of goods ordered contingent upon payment of outstanding invoices for previous business.

2. 4. If after conclusion of the contract we become aware of circumstances justifying concern that the customer cannot duly meet its commitments we may make delivery contingent upon provision of security in the form of a bank guarantee or cash in advance.

2.5. Cheques and bills will be accepted only on account of payment and bills only by special agreement. Credit notes in respect of cheques and bills are always valid only subject to receipt of payment and irrespective of an earlier due date for payment of the purchase price in the event of default by the customer. The credit note is issued with the value date on the date when the countervalue is at our disposal. Additional expenses of discounting bills and cheques, in particular bank charges, shall be borne by the customer.

2.6. In the case of payment by the cheque/bill method (acceptor’s bill) payment shall not be deemed made until the bill is unconditionally paid. We shall not be liable for compliance with particular dates or forms for the realisation of cheques or bills, in particular for presentation and protest.

3. Delivery Periods; Default

3.1. Quoted dates for deliveries and services shall be considered only approximate. Any agreement on firm dates is valid only with our express written confirmation. Delivery is deemed on time if the goods have left the factory or notice is given that they are ready for shipment before expiry of the delivery period.

3.2. The delivery period shall be extended commensurately in the event of measures in the context of industrial disputes, in particular strike and lock-out and the occurrence of unforeseen events beyond the supplier’s control if such impediments significantly affect the completion or delivery of the goods. This shall apply even if they occur during an existing delay. The start and end of such impediments will be notified to the customer as soon as possible in significant cases.

3.3. Part deliveries of goods and services are permissible. Part deliveries of goods and services shall obligate the customer to make corresponding part payments.

3.4. If the customer incurs damage as a result of a delay for which the supplier is responsible, if the customer is a merchant it shall be entitled to demand compensation for damage caused by the delay, to the exclusion of further claims. This shall amount to 0.5 per cent of the purchase price for each full week’s delay subject to a limit of 10% of the value of that part of the total delivery that cannot be used in time or in accordance with the contract because of the delay. This shall not apply if we are liable under imperative legal provisions.

3.5. Upon expiry of the delivery period the customer shall notify us in writing that we are in default, allowing an appropriate period of time unless the delivery period was stipulated as a contract where time was of the essence.

4. Transport and Packing

4.1. Unless otherwise stipulated the choice of shipping route and method is left to the supplier’s discretion. The goods will be insured at the customer’s request and expense. If shipping is delayed at the customer’s request or through the customer’s fault the goods shall be stored at the customer’s expense and risk. In this case notification of readiness for shipping shall be equated with shipping. Apart from that, the risk shall pass to the customer at handover of the goods to a forwarder or carrier and at the latest on leaving the warehouse. If carriage is handled by commercial carriers the supplier shall be liable for damage in transit only insofar as the supplier is able to obtain satisfaction from the carrier concerned by recourse.

4.2. A successful claim against the carrier for damage in transit requires the customer (consignee) to have without delay established the facts of the damage in transit (ascertainment of damage) jointly with a representative of the carrier and requested a written record.

4.3. Packaging is charged for separately. It is non-returnable.

5. Warranty

5.1. We do not give the customer any warranty as to the quality and durability of goods delivered and work performance unless this is expressly given in writing.

5.2. Our advertising and printed matter do not contain any legally binding warranties. Differences from illustrations or other information provided in advertising and printed matter, brochures or catalogues are possible.

5.3. In the case of customers who are not ultimate consumers, warranty claims for defects in brand-new goods and work performances are limited to a period of 1 year from delivery of the goods. Otherwise the warranty period is 2 years from delivery of the goods.

5.4. In the case of ultimate consumers, warranty claims for defects in used goods delivered are subject to a time limit of 1 year from delivery of the goods. No warranty applies to used goods delivered to customers who are not ultimate consumers.

5.5. The exclusion of warranty or the restriction of warranty as per Clauses 3 and 4 does not apply in cases of injury to life, limb or health, in the case of intentional or grossly negligent breach of duty by the supplier or in case of malicious concealment of a defect.

5.6. There shall be no warranty claims in the case of merely minor deviations from the agreed quality, non-significant deviation from the agreed quality, non-significant impairment of usability, including as a result of changes to the design or execution, or in case of wear or damage occurring after passing of risk due to incorrect or negligent treatment or excessive stress. Should the customer or a third party carry out improper modifications or repairs, there shall likewise be no warranty claims in respect of these or the consequences arising. The supplier shall first of all be given an opportunity to make good the work within an appropriate time. Should this subsequent performance fail, the customer may – without prejudice to any claims for damages – rescind the contract or reduce the amount payable in accordance with Clause 7.

5.7. Immediately upon receipt the customer shall inspect the goods for any defects or inconsistency with the order. Complaints about defects shall be valid only if made in writing within 14 days of receipt of the goods. In the case of a defect not evident from immediate inspection the defect must be notified without delay upon discovery and within the warranty period. If no complaints are received within the time allowed the delivery shall be deemed accepted.

5.8. Returns shall be made only by agreement with us.

6. Retention of Title

6.1. In the case of contracts with ultimate consumers and public-law legal entities we retain title to the goods until full payment of the purchase price.

6.2. In the case of contracts with enterprises we retain title to the goods until payment of all debts due arising from business relations with the customer.

6.3. In the event of processing or working up of supplier’s goods by the customer with the result that the goods become the customer’s property by operation of law, the customer shall here and now assign processed goods to the supplier as security for the purchase price debt and shall possess them exclusively for the supplier.

6.4. The customer is permitted by the supplier to sell the goods that are subject to reservation of title and the goods assigned as security in the course of ordinary business or to further process them. Pledging or assigning as security shall be excluded. Customer’s claims against its customers arising from resale or processing of the said goods are hereby assigned to the supplier up to the amount of the purchase price debts owed by the customer. The customer is authorised to collect the debts due from resale in the supplier’s favour. The supplier reserves the right to collect the debt due itself. The customer shall provide the supplier at the latter’s request with the information necessary to assert the assigned claim and shall surrender the documents necessary to substantiate the claim. Retention of title in respect of the goods delivered shall remain in force even if individual claims of the customer’s are managed and settled in the context of open accounts. In that case the supplier shall release to the customer the reservation of title or assignment and any advance assignment to the extent that the securities granted exceed the supplier’s claims still due by more than 10%.

6.5. The supplier must be notified immediately of any seizures by third parties of goods delivered subject to retention of title. The expenses of cancelling the seizure shall be to the customer’s account. If the processed goods also incorporate third party material the supplier shall become the owner of the processed goods in fractions in the proportion of the value of the goods delivered by the supplier to the value of the other suppliers’ goods. The supplier shall still be entitled to rescind the contract and then to demand the return of the goods delivered, excluding any right of retention of the customer’s, and take possession of them if an appropriate extension of time for payment of the outstanding debt was set and payment did not take place within the time allowed. The customer shall compensate for the value of a performance that cannot be returned or if the goods cannot be surrendered or if they have deteriorated. Use obtained and the amenity and advantage of using the goods shall be surrendered to the supplier or compensation paid. The supplier reserves the right to demand compensation for non-performance of the contract.

7. Other Compensation Claims

7.1. Our liability shall be governed exclusively by the stipulations of the General Standard Terms and Conditions. Customer’s claims for compensation and reimbursement of expenses (‘compensation claims’) on any legal basis whatsoever, in particular for breach of duty arising from the contractual obligation and tort, shall be excluded.

7.2. This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health, or breach of essential contractual obligations. However, the compensation claim for breach of essential contractual obligations shall be limited to foreseeable damage typical of the contract, save in cases of intent or gross negligence or liability for injury to life, limb or health. The above provisions do not imply any shifting of the burden of proof to the customer’s detriment.

8. Place of Jurisdiction and Choice of Law

8.1. If the customer is a merchant the sole place of jurisdiction for all disputes arising directly and indirectly from the contractual relationship shall be the supplier’s registered office.
The legal relationship associated with this contract shall be governed by German substantive law excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).