General terms & conditions of business
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Certified translation from the German language
1. General information
The following General Terms and Conditions of Delivery and Payment shall apply only in business transacted with Merchants within the meaning of § 24 General Terms and Conditions of Business Act [AGBG]. They shall apply for and govern the entire business relationship with our customers. The Purchaser acknowledges them as binding both in conjunction with the present Contract and with any and all future business. Any and all agreement of deviating content shall be required to have been confirmed by us in writing, which condition shall likewise apply in respect of cancellation of the requirement that written form be adhered to. General Terms and Conditions of the Purchaser will not be recognised, nor will they become an integral p011ion of the Contract, even by execution thereof.
2. Quotation and delivery I performance
- Our quotations are submitted on a subject-to-change basis.
- Where we are prevented from fulfilling the Contract on time for reasons of unforeseeable, unavoidable and extraordinary disruption from the point of view of procurement. manufacture or delivery -whether on our part or that of our own suppliers -e.g. as a consequence of lack of power, traffic and I or transport disruption, strike, lockout, the delivery lead-time will be extended accordingly, however, by no longer than a period of six months. The Purchaser may only withdraw from the Contract where they extend this period granted, once expired, in writing by a further and reasonable deadline of at least three weeks in so far as a reasonable extension of deadline may not be assumed to be of longer duration given the specific circumstances in question. Declaration of withdrawal wi I l be submitted in writing where it transpires that we have not fulfilled the Contract within the additional period granted.
Subparagraph 3 shall remain unaffected thereby.
- We will be released from our obligation to deliver I perform here we are prevented from doing so, whether in part or in full. for the reasons as specified under
- We will undertake to duly inform the Purchaser immediately in the event of prevention as provided for under Subparagraph (3).
- There will be strictly no question of claims for compensation in favour of the Purchaser on grounds of delay, non-performance or of such as may be derived from contractual or non-contractual activity in so far as we, or our vicarious agents may not be held accountable for wilful intent, gross negligence or the contravention of a contractual obligation of significant content. This will likewise apply where an act for our part may be held to constitute one of a tortious nature.
- Liability on the part of the Seller will be confined to occurrences of foreseeable loss I damage. This will, under no circumstances, extend to include claims relating to such occurrences of loss I damage as could not have been foreseeable upon conclusion of Contract or upon any occurrence of breach of obligation, whereby exclusion as referred to hereunder will hold botb from the point of view of the specific loss I damage or of the extent thereof. We will be entitled. where it transpires Lhat the Purchaser is in default of payment in respect of a previous delivery, to withhold deliveries without, at the same time, accepting any obligation to furnish compensation for such loss I damage as may be incurred as a consequence thereof.
- We will be entitled to perform partial delivery I deliveries to such extent as may be held to be reasonable.
Calculation of amount(s) chargeable shall be based on the prices as applicable per date of delivery in so far as nothing specific to the contrary has been agreed. Where it transpires in the case of call-off or forward orders, that only a po1tion of the quantity agreed is taken. and this development is not attributable to us. we will be entitled at our own discretion to charge the price(s) payable for the batch-size per delivery or to deliver and charge for the quantity in respect of which delivery has not yet been requested.
- Our invoices are payable net within a period of 30 days as of date of invoice. We shall be at liberty, however, to demand that performance of delivery be made subject to immediate payment.
- We shall be at liberty in the event of default in payment on the part of the Purchaser to charge default interest in amount equivalent to 4% above the respective discount rate of the Federal Bundesbank in so far as there is no evidence forthcoming of greater or lesser loss I damage.
- 3. We reserve the right to take our decision in respect of the acceptance of bills of exchange and cheques on a case-by-case basis. Acceptance shall be taken to be in lieu of payment only. Credit procedure shall be strictly subject to the normal conditions. We shall pass on the discount and collection charges payable as standard in banking business in conjunction wilh bills of exchange. There will no question of our assuming liability either for timely collection or for timely protest in so far as we or our vicarious agents may not be held accountable for wilful intent, gross negligence or the contravention of a contractual obligation of significant content.
- ln the event that a bill of exchange or cheque cannot be discharged or encashed, as the case may be. on time for reasons for which the Purchaser may be held accountable, or other such circumstances materialise as may serve to significantly place payme jeopardy, we shall be at liberty to declare the entire amount due and owing-even where bills of exchange or cheques may have been deposited against such amount.
5. Retention of title
- The goods wiU remain our property until such time as any and all amounts outstanding in connection with our business relationship with the Purchaser, and also those accruing at a future date, have been settled in full.
- 2. Any processing or conversion by the Purchaser of the goods purchased will, in all cases. take place on our behalf. Where the goods purchased are processed together with other items that do not belong to us. we shall be held to have acquired co-
ownership of the new item thereby created. namely, in measure proportionate to the ratio in value terms then created between the goods purchased and the other items involved in processing at the point in time of said processing. Where the goods purchased become inseparably mixed or combined or compounded within the meaning of § 946 Federal Civil Code [BGB] with other items which do not belong to us, we shall be held to have acquired co-ownership of the new item thereby created. namely, in measure proportionate to the ratio in value terms then created between the goods purchased and the other items nt the point in time of mixing, combining or compounding. Where mixing. combining or. as the case may be. compounding are carried out in such manner as would result in the item of the Purchaser being looked upon as the main item, agreement shall be established to the effect that the Purchaser will assign pro rata ownership to us. The Purchaser will look after the item for us on a free-of-charge basis.
- The Purchaser will be at liberty to dispose by way of sale of the goods subject to retention of title within the normal course of business, namely in return for immediate payment or subject to the condition of retention of title; they shall not be at liberty to engage in other manners of disposal. in particular. by way of assignment as security or pledge.
- The Purchaser herewith and now assigns to us from any amounts ovving to them from the selling-on of the goods subject to retention of title the amount of invoice inclusive of Value Added Tax accompanied by any and all ancillary rights corresponding to our amount.
- In the event that the amounts owed to the Purchaser from selling-on procedure become treated on a current-account basis. the Purchaser herewith and now assigns to us their current account balance claim against their customer ( inclusive of the
“causal ” balance in the event of bankruptcy ). Assignment shall be in the amount inclusive of Value Added Tax that we have charged them for the goods subject to retention of title which have been sold on.
- The Purchaser is entitled to collect the claims that have been assigned to us. Assignment or pledging of these claims shall be strictly subject to our written approval. Authorisation to collect will not. under any circumstances, apply where the Purchaser falls into arears of payment. an application for the initiation of bankruptcy or settlement proceedings is filed, payments are suspended or, indeed, for any other reason that may serve to place the security interests of the Purchaser in jeopardy.
The Purchaser is obliged in this event, should we so request, to inform the debtors in writing of assignment, to provide us will all information and to make available to us the relevant documentation.
- Upon the occurrence of the circumstances set forth under Subparagraph 6, Sentence 3 above, the Purchaser shall grant us access to the goods subject to retention of title which are still in their possession, provide us with an exact itemisation of the goods and separate and sun-ender the goods to us.
- We will undertake. at the request of the Purchaser. to release security due to us once the realisable value of our security exceeds the receivables to be secured by more than 20 %; the choice of security to be released shall be at our discretion.
- The Purchaser shall inform us immecliately in writing of any attachment by third parties of the goods subject to retention of title or the receivables assigned to us and suppon us in every way in our effort to intervene.
- The costs of the performance of the obligations as set forth above to cooperate in the pursuit of all rights arising from retention of Litle as well as all expenditures incurred for the maintenance and storage of the goods shaU be borne by the Purchaser.
6. Packing and transportation
- Packaging shall be carried out in accordance with trade and commercial practice. Special packaging and substitute packaging shall be invoiced at cost.
- All transportation costs shall be borne by the Purchaser.
7. Tran sf er of risk
- Risk ofJoss and damage shall pass to the Purchaser as soon as the goods have left our factory or our warehouse. All shipments, including any returns. shall be executed at the risk of the Purchaser.
- All of our shipments are insured against damage in transit at Purchaser’s costs.
8. Liability for defects and indemnity
- The goods shall be delivered having applied such workmanship and in such condition as is standard for us at the time of delivery.
- Goods supplied by us are to be inspected for correctness immediately upon receipt. We are to be notified in writing, likewise immediately upon receipt, as to any occurrence of shortage or incorrect quantities as well as in the event of detection of evident defect. We are to be notified in writing immediately in the event of detection at a later stage of defect(s) of a non-evident nature, namely, as soon as they are discovered; otherwise. the goods will also be deemed to have been approved despite the existence of such defect(s). Claims accruing under warranty shall lapse following expiration of a period of 30 days as of delivery.
- The warranty shall lapse where changes are made lo the goods delivered by the Purchaser or by a third patty, unless, that is, the defect only became apparent at the time of, or after, the change, or where the Purchaser does not. without undue delay. comply with ow· request to return the goods alleged to be defective.
- In the event of justified claims. we, al our ov.n discretion, will remedy the defect by way of repair free of charge or delivery of a replacement. In this event, we shall also bear the costs of transportation. ln the event of failure of the repair or replacement, then the Purchaser may, at their own discretion. request reduction in the price of the goods or canceIJation of the agreement. Further liability, in particular, for any such loss I damage as shall not have been incurred in respect of the goods delivered themselves, shall be given no consideration whatsoever in so far as we or our vicarious agents may not be held accountable for acts of wilfulness, gross negligence or breach of obligations of significant content under the present contract, or in so far as a quality which should have prevented the occurrence of loss I damage was not expressly warranted.
- Goods which are alleged to be defective must be returned either in their original packaging or in accordance with trade and commercial practice.
- Repairs shall be carried out without warranty where no notice of defects has been provided.
- In the event of defective repair, readily-apparent defects are to be advised without undue delay in writing. We are to be notified in writing immediately in the event of detection at a later stage of defect(s) of a non-evident nature, namely, as soon as they are discovered; otherwise, the goods wi11 also be deemed to have been approved despite the exjstence of such defect(s).
- Claims for compensation shall only be acknowledged as provided for under Paragraph 8 Subparagraph 4 Sentence 4.
10. Other claims for compensation
Other claims for compensation as asserted against us on the part of the Purchac;er shall irrespective of the their legal basis – be given no consideration whatsoever in so far as we or our vicarious agents may not be held accountable for acts of wilfulness. gross negligence or breach of obligations of significant content under the present Contract.
11. Prohibition of set-off and right of retention
The Purchaser may onJy assert a right of retention where it is based on the same contractual relationship. There shall be no question of set-off by the Purchaser or the enforcement of a lien, w1less, that is, the counterclaim is uncontested, acknowledged by us or has been established under a final and non-appealable judgement in law.
12. Claims for compensation on grounds of non-performance
Where claims to damages shall accrue to us against the Purchaser on grounds of non-performance, the damages payable shall be in amount equivalent to 25 % of the net value of the goods in so far as evidence of loss I damage of lesser or greater extent shall not be forthcoming.
13. Labelling of the goods, industrial property rights
- Any alteration or designation of our goods which could be construed as constituting a designation of origin of the Purchaser or of a third party or creates the impression that it represents a specificalJy-issued certificate is strictly inadmissible.
- Insofar as third parties should assert justified claims against the Purchaser arising out of the infringement of industrial property rights of which they are owner, we shall, at our own discretion and expense and insofar as we are liable towards the Purchaser under those statutory provisions applicable, obtain a licence for the goods sold or replace them with a non-infringing equivalent Where this is not possible for legal or technical reasons, or cannot be expected of us applying reasonable economic criteria. then we will not [* sic.] accept t11e return of goods against refund of the purchase price. [*Translator’s remark: Source text (incorporating “nicht” = negative) evidently incorrect here] Our satisfying any further claims will be strictly subject to the provisions as set forth under Paragraph 10. We do not assume any liability for any such use of the goods as shall not have been contractually agreed.
- We will not, in the case of goods manufactured in accordance with the specifications ofthc Purchaser, be held liable for the infringement of the industrial property righrs third parties. unless, that is, we. or our vicarious agents arc to be held accountable for wilful intent, gross negligence or the contravention of a contractual obligation of significant contenL This shall also apply where we have cooperated in the development of the goods or developed the goods according to the specifications of the Purchaser.
14. Validity – Severability clause
In the event that any of the present provisions shall be found to be invalid – regardless of the reason therefor – the validity of the remaining provisions shall not be affected thereby.
15. Jurisdictional venue and place of performance
The courts in Lem go shall have jurisdiction over all disputes arising out of, or in connection with, the present contractual relationship where the Purchaser shall have the status of Registered Merchant.
Place of performance is Lemgo.
16. Applicable law
The present terms and conditions of delivery and payment and all legal relationships between the parties relating to our supplies shaJI be governed by the laws of the Federal Republic of Germany to the exclusion of the Uniform U.N. Convention on the International Sale of Goods [CISG].
Terms and Conditions of Purchase
- The following Terms and Conditions of Purchase shall only apply in relation to business transacted with Merchants wi U1in the meaning of Paragraph 24 of the General Terms and Conditions ofBusiness Act [AGBG]. Any and a11 orders placed by us – also those placed al a future dale – shall be governed exclusively by the Terms and Conditions as set forth hereunder in so far as nothjng to the contrary shall have been explicitly agreed in writing. The general tenns and conditions of the Supplier shall not apply, nor shall any conditions of alternative content as shall appear in their confirmations of order be recognised. Our Terms and Conditions of Purchase shall, furthermore, apply exclusively even where we accept the delivery of the Supplier without reservation in the knowledge of the existence of supplier-conditions of contradictory or deviating content. Orders placed or agreements established verbally shall be strictly subject to our having confirmed them in writing where they are to be deemed effective in law; the same shall apply in the event of verbal adjustment of, or additions to, written orders as well as in relation to cancellation of the clause governing written form.
- The prices shall be quoted exclusively inclusive of Value Added Tax. The prices shall be maximum prices and shall include delivery to the location of receipt as designated by us. Customs dulies and levies, transport. packaging and insurance costs, as well as other ancillary costs, shall only be assumed separately where expressly agreed. Where packaging material shall be returned, we are to be credited with the value thereof. The return of packaging materials shall be carried out on a freight-collect basis.
The delivery dates as specified in our orders are binding and are to be taken to equate to our required date of arrival at the location of receipt as designated by us. Where the Supplier shall establish that a given date of delivery cannot be complied with, we are to be notified accordingly, without delay and in written form.
We are entitled to refuse to accept any such goods as shall be delivered in advance of the date specified in our order and to return said goods delivered prematurely or, alternatively, to store them on the premises of third parties, which procedure shall, in either case. be for the account and at the risk of the Supplier.
Where unforeseeable or extraordinary circumstances shall dictate that we are unable to accept the deliveries, and where a reasonable level of care shall have been applied to no avail for ow- part to avert such circumstances, ( e.g. the occurrence of interruption of operations, strike ), the point in time of acceptance of the goods shall be postponed for a term equivalent to the term of duration of the obstacle. Where acceptance shall be obstructed for such circumstances as those specified above for a period of in excess of six months, both Parties shall be at liberty to withdraw from the Contract.
A packing slip and a bill of delivery incorporating reference to our order and item number shall accompany all shipments. Failure to include same shall result in our refusal to accept the goods.
- Place of Performance
The Supplier shall deliver at their own risk the goods ordered to the place of delivery as designated by us.
- Acceptance and Inspection of the Goods
Receipts of delivery issued at the location of acceptance as designated by us shall be subject to subsequent inspection for conformity , quantity and quality. We shall have the right to conduct the inspection by means of random sampling and notwithstanding any other claims that we may have. to reject the goods completely or to have them undergo a one hundred percent inspection at the cost and risk of the Supplier and to request replacement of thc defective parts where permissible marginal quality values or Acceptable Quality Limits [AQL] are exceeded. We reserve the right, in the event of defect, to pass on the costs for the inspection of the replacement delivery. Insufficient or incorrect deliveries as well as readily-apparent defects shall be notified by us witrun ten days. Hidden defects shall be notified by us within ten days after discovery. This shall also apply in the case of goods which a re resold by us worldwide.
Returns of defective goods shall be accompanied by return-debit of the amount of the invoice at the cost and risk of the Supplier. Replacement deliveries shall be invoiced anew incorporating reference to the number of our return shipment and debit note.
The Supplier shall provide full warranty for good workmanship, sound and proper execution as per agreement as well as for the use of good and flawless raw materials. The goods shall, in any event, be compliant with the generally-recognised principles of technology. as laid dov.’Tl, in particular, under DfN guidelines, VOE regulations and other recognised technical regulations.
Defects in the goods, even where they shall not have been identified in the process of random-sampling acceptance, shall entitle us, at our own discretion, either (a) to reduce the purchase price or (b) to demand repair or (c) where the Supplier is in
default in respect of performance of repair, or where we are confronted with exigent circumstances or situations of urgency, to undertake such repair ourselves on behalf and at the expense of the Supplier or (d) to demand replacement delivery or (e) to withdraw from the agreement. either in its entirety or in part. Our entitlement to payment of damages, in particular, to damages on grounds of non-perfo rmance, shall remain unconditionally reserved where nothing to the contrary shall have been agreed; the period of warranty shall then commence afresh.
- Goods compliant with state-of-the-art
The Supplier shall be obliged, in particular, in the case of supply agreements concluded as applicable in the long-term, to ensure at all times that the goods ordered comply with state-of-the-art standards. Any and all adjustments as may be planned from the point of view of technical make-up or desi gn are to be submitted to us for our approval.
We shall have the right during the term of the agreement to dictate a reasonable degree of adjustment from the point of view of technical and I or structural make-up and I or design.
Any change thereby necessitated in respect of costs in a given case is to be taken into account, and we are to be notified thereof without undue delay. Reductions in the price of products as achieved through increased production or processes of ralionalisation shaJJ be credited to us. and we are likewise to be notified thereof.
- Property rights
The Supplier shall furn.ish full and independent warranty to the effect that the delivery nod use, as per contractual agreement, of the goods ordered shall in no way cause infringement of the property rights of third parties, including applications currently in process therefor, within the countries of the European Union, Switzerland., the United States of America_ Japan, South Korea. Singapore, Hong Kong, China. Taiwan, Malaysia and in any other such country of which the Supplier may be notified from time to time. The Supplier shaU undertake to indemnify us against any and all such claims as may be asserted against us on grounds of such occurrence of infringement. In addition to those claims for damages accruing to us, the Supplier shall, furthennore, be held liable for any and alJ such claims derived under law and contractually from issues of pertinence to material defect and defect of title; this shall also apply in the case of such goods as the Supplier shall have procured from third parties.
The Supplier shall undertake to ensure, in conjunction with the use of property rights of third parties as agreed under licence by such parties with the Supplier, however, subject to territorial restriction, that such use is permitted in all of the above mentioned countries.
Payment shall be effected within 14 days as of receipt of the invoice with a deduction of a 2 % early-sett lement discount or net within 30 days. Payment may not be construed as implying either acknowledgment of performance or waiver of warranty.
The invoice shall be issued without W1duc delay following shipment of the goods and incorporating reference to both our order number and our item number. It shall be sent in duplicate to our address as specified on the reverse and may not accompany the shipments.
With the exception of the house bank or the factoring company of the Supplier. the assignment of receivables from us shall not be valid without our written approval.
Any and all such documents as we shall have made available to the Supplier for the purpose of submission of quotation or carrying out of an order shall remain our property and may not be used for any other purpose, duplicated or made available to third parties.
These documents or objects shall be returned to us without specific request and free of charge after the order has been carried out. Products which have been produced pursuant to these documents may not, whether directly or in connection with other products, be offered delivered or otherwise brought to the attention of third parties without our written consent.
The Supplier undertakes to avail itself of the knowledge and experience acquired in the execution of our orders exclusively for orders of our company. It shall treat as strictly confidential the business affairs to which it shall have become privy in the course of execution of our orders. Obligation to observe confidentiality shall not apply if, and in so far as, the issues concerned constitute generally-available knowledge or are already in the public domain.
- Validity – Severability clause
[n the event that any of the present provisions shall be found to be invalid- regardless of the reason therefor – the validity of the remaining provisions shall not be affected thereby.
- Jurisdictional venue and place of performance
The courts in Lemgo shall have jurisdiction over all disputes arising out of, or in connection with, the present contractual relationship where the Purchaser shall have the status of Registered Merchant .
Place of performance is Lemgo.
- Applicable law
The present tenns and conditions of delivery and payment and all legal relationships between the parties relating to our supplies shall be governed by the laws of the Federal Republic of Germany to the exclusion of the Uniform U.N. Convention on the lntemational Sale of Goods [CISG].