GENERAL DELIVERY AND PAYMENT TERMS
1.1 Written offers, deliveries and services shall be provided including for future business transactions exclusively according to the following terms. Objections will be raised against any deviating conditions and particularly concerning conditions of purchase. Such conditions are only valid with respect to us if we have confirmed any such deviation in writing.
1.2 Sales prospectuses, price lists, offer documents or other documentation do not provide any guarantee in the sense of paragraph 443 of the German Civil Code. We reserve the right, as required, to change the descriptions of goods and/or to correct any errors and no liability shall arise for damage in these cases.
1.3 The buyer shall be obligated to hold in strict confidence all contract documents, specifications and price lists and to only use such documents within the framework of his business activities. The delivery terms replace all other agreements, which were made prior to this by the Contracting Parties either in writing or verbally.
2.1 Orders only lead to the conclusion of a contract if they are accepted in writing within three weeks after receipt.
2.2 The buyer is solely responsible for the contents and in particular for the preciseness of his order. The buyer shall provide, without any request, all required information in a reasonable time and in particular in the case of items made to order.
3.1 The delivery prices are based on the particular current price list of the supplier and, if no other agreements are made, include packing and the valid value-added tax if such tax is to be collected.
4. Payments, Offsetting and Membership in an Association
4.1 If no differing written agreements have been concluded, invoices are due for payment within 30 (thirty) days after the invoice date without discount using a bank transfer. The crediting of the amount to our accounts is definitive for the fulfillment of the time limit.
4.2 Any declaration concerning offsetting and/or the exercise of the right of retention shall only be permissible if the counterclaim is indefeasible or if it is undisputed both with respect to the reason and the amount.
4.3 If the payment transactions are handled through an association or a central settlement office, then payments by the buyer to the association shall only have the effect of discharging the debt to us if the association or the settlement office pays these amounts to us.
5. Delivery Dates
5.1 Delivery dates are basically nonbinding. Firm dates and deadlines shall only be valid after express written confirmation.
5.2 The supplier shall be entitled to make delivery before the delivery date, which has been agreed on. In addition, performance by successive installments is permissible in a reasonable scope.
5.3 If a delivery date, which has been agreed on, is not met, then the buyer is to set an additional period of time of at least three weeks before he may assert claims based on the law on default in performance or on a warranty.
5.4 Warnings based on delay concerning the delivery must grant the supplier a time limit of at least three weeks for the delivery.
5.5 If the delay in delivery is not the responsibility of the supplier, then the delivery time limit shall be extended by a reasonable time, but the buyer shall not be entitled to derive any rights from this. However, if the hindrance lasts longer than three months, then the buyer shall be entitled to withdraw from the contract according to paragraphs 5.3 and 5.4 after the setting of a reasonable additional period of time
6. Returned Goods
6.1 Returned goods and in particular for goods used for exhibits are basically excluded from warranty claims for defects.
7. Bearing of the Risk, Requirement to make Notice of Defects and Duty to Examine
7.1 The delivery shall be made as desired by the purchaser to the delivery address provided by the purchaser.
7.2 If nothing to the contrary has been agreed on with the customer, the delivery shall be made ex works. The risk shall pass to the purchaser as soon as the shipment is transferred to the freight carrier or for the purpose of shipment the delivery has left the plant grounds. If the shipment is delayed due to a request from the purchaser, then the risk shall pass to the purchaser upon the notification that the goods are ready for shipment.
7.3 The buyer or recipient designated by the buyer must have any transport damage or partial delivery promptly certified by the carrier. The purchaser shall also be obligated to promptly examine the goods delivered in the sense of paragraphs 377 and 378 of the German Commercial Code and if necessary by taking random samples. Obvious defects and damage are to be promptly and specifically reported in writing and defects and damage, which are not immediately obvious, are to be reported in writing promptly and specifically after their discovery.
8. Retention of Title
8.1 Up until the complete payment for the delivery and settlement of all liabilities, to which the supplier company is entitled, from the existing business relationship due to any legal reason against the buyer now or in the future including all claims for payment of the balance from a current account, the supplier reserves the right to retention of title to the goods delivered. The seller shall release goods upon demand according to his choice if the value of such goods exceeds the debt claims sustainably by more than 20 (twenty) percent.
8.2 The buyer shall be entitled to sell the goods as part of the ordinary course of business. Processing or reconstructing shall be done for the supplier as the manufacturer, but this shall be without any obligation for him. If the ownership or joint ownership by the supplier firm expires due to connection or processing, then it is herewith agreed that the ownership or joint ownership of the buyer on the uniform object shall pass to the supplier as a proportional value in the amount of the invoice for the goods delivered. The holding in safe custody of the joint property shall be at no charge.
8.3 The supplier shall have the right to reclaim the entire goods or reclaim a part of the goods or to pick up the goods, to sell them or to otherwise dispose of them if the payment obligations of the buyer to the supplier company are not completely fulfilled. The reclaiming shall not be considered as withdrawal from the contract. The buyer herewith assigns all claims from the reselling of the goods to the supplier according to the provisions of paragraph 8.1 sentence 2. The assignment shall apply to all debt claims due to other legal reasons and in particular shall apply to insurance benefits or claims for damages to the conditional goods, to which the buyer is entitled against the particular obligated party. The supplier herewith accepts the assignment.
8.4 Pledging or assignment as collateral shall not be permissible. If the goods are seized or other legal actions concerning the goods are taken by a third party, then the buyer shall promptly notify the supplier and shall provide the required documents to the supplier along with such notification and other documents requested by the supplier. If this obligation is violated, then the supplier shall be entitled to have the claims for surrendering by the buyer against third parties assigned to the supplier. All costs, which result from a violation of these provisions, shall be borne by the buyer.
9. Warranty, Indemnity
9.1 The supplier shall be liable for defects in quality and defects in title as of the passing of the risk for a period of two years with the exception of the provisions of paragraph 634a section 1 No. 2 of the German Civil Code.
9.2 In the case of a defect in quality, the supplier may choose between the right to subsequent performance by means of remedy of the defect or a substitute delivery. Only after subsequent fulfillment fails, which may be assumed only after two subsequent fulfillment attempts fail, does the Buyer have the right to demand a reduction of the purchase price or withdraw from the contract.
9.3 Claims for damages and claims for reimbursement of expenses, regardless of the legal reason, and in particular due to the violation of obligations from the relation under the law on obligations, delay and unauthorized actions are excluded. This shall not apply if liability is compulsory such as according to the Product Liability Law, in cases of wrongful intent, gross negligence, due to loss of life, bodily injury or harm to health or due to a material breach of contract. Any claims concerning a material breach of contract shall be limited to contract-typical and foreseeable damages unless wrongful intention or gross negligence exists or liability exists due to the loss of life, bodily injury or harm to health . No change to the burden of proof to the disadvantage of the buyer is connected with the above provisions. If claims for damages are to be granted due to delay or in place of the delivery then compensation is to be paid for every completed week of delay and this is to amount to 0.5 percent, but in total a maximum of five percent of the net price for that part of the delivery, which could not be placed in operation for its intended purpose, unless the buyer can show the occurrence of higher damages.
9.4 Claims of the buyer according to paragraph 478 of the German Civil Code shall basically not be affected. Before the buyer may settle a claim for damages from an end consumer, he shall inform the supplier and provide him with the opportunity to remedy an error or eliminate damage. If this is not possible or corresponding information has failed, then the obligation to render compensation by the supplier shall be limited to the required expenditures, which the buyer has incurred within the limits of the cost price without a profit markup and such expenditures must be proven. The supplier is entitled to choose between providing the buyer with an adequate other counter-performance for example in the form of special discounts, exhibit discounts or other compensation. If such damage is compensated as part of the product liability insurance, then the amount of the claim for damages is to be limited to the actually provided insurance benefit.
9.5 The buyer is prohibited from assigning claims from defaults in performance or warranties to a third party and in particular to the end consumer.
9.6 An exclusion of liability, which applies to us, shall also apply to our employees and to vicarious agents, which are working for us.
10. Governing Law and Place of Jurisdiction
10.1 This Agreement shall be solely governed by and construed under German law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
10.2 The place of performance is the registered office of the supplier company or alternatively the location of the passing of risk.
10.3 In addition, the Contracting Parties agree to the exclusive place of jurisdiction as the registered office of the supplier company. The supplier reserves the right however to file a lawsuit with the court, which has jurisdiction for the buyer.
Status as of March 2005.