General Terms and Conditions of Business
I. General information
1. Only the following terms and conditions of sale are decisive for all deliveries and services, also including any such future business transactions. Any agreements or supplements must be made in writing.
2. The offerings made in our desiccant shop are only directed at commercial customers.
3. Our offerings are subject to confirmation.
4. We reserve ownership and copyrights to all quotations, drawings and other documents, access to which may not be provided to any third parties.
5. If one or more of these terms and conditions of sale should be invalid, then remaining provisions shall remain valid.
II. Delivery time and bearing of risk
1. Delivery times agreed shall begin at the time point when agreement is reached about all the details of the delivery and at which the buyer has fulfilled any advance payment obligations.
2. The delivery time has been met if, by the time it expires, the delivery item has left our plant, or the customer has been notified of readiness for dispatch by us.
3. If we are hindered from fulfilling a contract on time due to interruptions in procurement, manufacture or performance (either domestically or abroad), either at our organisation or at one of our outside suppliers, without our being at fault for such, e.g. as a result of import or export restrictions, strike or lockout, energy shortages or interruptions in transportation, then the delivery time shall be extended by the duration of the hindrance, this amounting to a maximum of two months. When this time limit expires, the buyer shall be entitled to withdraw from the contract in full or in part by making a written declaration to us. If it becomes impossible for us to fulfil a contract due to one of the aforementioned reasons, then we shall be released from our obligation to perform. If we are responsible for a delay, then the buyer shall have the right to withdraw from the contract as soon as it has set a fair grace period for us in writing, and we have allowed the time period to lapse fruitlessly. Claims for damages due to delays or non-performance by us of the obligation to perform may only be asserted within the scope of clause VI.
4. The merchandise travels from our plant or from our distribution centre at the risk of the buyer.
III. Scope of delivery, price, payment & due date
1. Quantity tolerances for rounding to whole packing units amounting to +/-5% of the agreed scope of the delivery shall be considered to be in accordance with the contract. The purchase price shall be calculated according to the actual quantity delivered.
2. In addition to the total price cited in the confirmation of sale, the VAT shall also be charged at its respective statutory amount.
3. Unless otherwise agreed, payment of our invoices must be made within eight days of the invoice date without any cash discount deduction. Only when they have been cashed shall bills of exchange and checks be considered as payment.
4. In cases of default of payment, interest on arrears shall be charged in the amount of 1% per month as of the due date. The right to prove a lesser loss through delay shall be reserved to us.
5. The buyer shall be barred from exercising a right of retention unless such is based on the same contractual relationship. Buyers shall only be entitled to make set-offs against counterclaims if such are undisputed or have been recognised by declaratory judgment.
IV. Reservation of title
1. Merchandise delivered remains entirely our property until fully paid for, including future or conditional claims against the buyer arising from our mutual business relationship. Reserved merchandise shall serve as security for our respective outstanding receivables.
2. Any possible alteration or processing of the reserved merchandise carried out by the buyer for us shall take place without such resulting in any commitment for us. If the reserved property is processed, connected, mixed or combined with other items not belonging to us, then, to secure our receivables, already now the buyer transfers to us co-ownership of the new combined or connected item in proportion to the value of the reserved merchandise to the other mixed, combined or connected items provided that the buyer provides safekeeping of the new item for us free of charge. By the "value of the reserved merchandise", the purchase price charged by us to the buyer is meant.
3. Buyers may resell the merchandise in the regular course of business, but not pledge it or assign it by way of security. The buyer's receivables arising from the resale of the reserved merchandise, including all ancillary rights, are already now assigned to us as security for our receivables. If the reserved merchandise is resold together with other items, irrespective of whether without or after processing, mixing, connecting or combining, then the assignment of future claim agreed above shall only apply in the amount of the value of the reserved merchandise, which has been resold together with the other merchandise. If the assigned receivable is entered into a current account, then the buyer's receivable arising from the current account shall be considered as assigned to us in the corresponding amount. If customers make partial payments, then the assignment shall continue to exist until complete payment has been made by the customer.
4. Buyers shall be authorised to collect the assigned receivables until such authorisation is revoked.
5. Buyers are obligated to insure the reserved merchandise against the usual risks, doing so at their expense with a noted German insurance company and to prove such to us upon demand. If need be, we are entitled to take out said insurance at the expense of the buyer. Buyers hereby assign to us their claim to the sum insured. With regard to the scope of the assignment, the provisions above in Clause 3 shall apply correspondingly. Buyers are furthermore obligated to ensure that the reserved merchandise is identified as our property and can be sorted out at all times and during all stages of its further treatment. The same shall apply mutatis mutandis to the receivables assigned to us.
6. Buyers are obligated to treat the reserved merchandise with care, to grant us access to the reserved merchandise at any time and to inform us about its scope and whereabouts. Should buyers default on payments or treat reserved merchandise in a fashion contrary to the terms of the contract, then on demand it shall be obligated to give us all information desired, to notify its customers about the subrogation, to turn over to us in this connection customer bills of a change and customer checks and to hand the reserved merchandise over to us.
7. Buyers are obligated to immediately notify us about third parties attaching reserved merchandise in our ownership or co-ownership as well as about receivables assigned to us, and as far as is possible for it to do so, to take measures to avert such attachments, such as seizure.
8. At the demand of the buyer, we will release the items of collateral, doing so according to our choice and to the extent that their value exceeds the receivables to be secured by more than 20%.
V. Liability for defects
1. Buyers must give written notice of defects immediately after they are discovered. Notice of defects that is late or not in the proper form cannot be taken into consideration. Warranty claims may only be asserted up to 24 months after merchandise arrives at its destination.
2. In cases of legitimate complaints, we redress the defect, ruling out any further claims, doing so according to our choice of either making a replacement delivery against return of the merchandise complained about or by carrying out repairs. Buyers may demand rescission of the contract (nullification) if: a replacement delivery or subsequent improvement is impossible, or if a replacement delivery or subsequent improvement is not brought about by us within a fair grace period to be set for us by the buyer despite written warning, or if the replacement delivery also has substantial faults, or if two attempts of substantial improvement have failed. Any more far-reaching liability, in particular for compensation for damages, shall only be given within the scope of Clause VI.
3. We are not liable for defects in the merchandise attributable in particular to climatic or other special circumstances at the destination determined by the location or operations.
VI. Claims for damages
Irrespective of the legal grounds for such (e.g. default, impossibility, positive violation of contractual duty, violation of precontractual duties and tort), claims for damages against us by buyers are excluded. By way of exception, this exclusion of all claims for damages does not apply in the following cases:
· For liability according to the Product Liability Act.
· When assured properties are absent.
· If we or our vicarious agent have acted with at least gross negligence, in such cases the liability for mistakes by non-managerial employees used being limited in scope to the predictable damage typical for the contract.
· Claims for damages by buyers due to non-performance. Any claims for compensation for damages to which buyers are entitled due to non-performance in cases of delayed performance on our part or any impossibility of performance that we are responsible for shall be limited to the predictable damage typical for the contract unless we have acted with at least gross negligence.
· Buyers' claims for damages due to breach of material contractual duties on our part. In any such cases, however, buyers' claims shall be limited to compensation for damages for predictable damage typical for the contract unless we have acted with at least gross negligence.
VII. Applicable law and legal venue
1. Only the law of the Federal Republic of Germany shall apply to business relations with our buyers. Application of the CISG (Convention on Contracts for the International Sale of Goods) is excluded.
2. Failing differing mandatory provisions of statute, Schwarzenbek is the legal venue for both parties to the contract and for all present and future claims arising from our business relationships. We may, as we deem appropriate, also bring actions against buyers at the courts competent for their place of residence.
Date: September, 2011