General Terms and Conditions of Payment and Delivery

1. Place of performance

Place of performance under the supply contract shall be the place where the seller’s commercial establishment is located.

2. Place of jurisdiction

Place of jurisdiction (also for actions filed with regard to cheques and bills of exchange) shall be the place where the seller’s commercial establishment is located.

3. Content of contract

a) All supply contracts shall be concluded for specific delivery dates, quantities, articles and qualities only. This shall be binding for both parties.

b) Block orders shall only be permitted if mutually agreed

c) Changes after placement of an order shall only be permitted if mutually agreed.

4. Delivery

a) Shipment of the goods shall be effected ex works (EXW ICC 2010). Upon request and at the risk and cost of the purchaser, the goods shall be sent to a different place of destination. In case a shipment order is carried out, according to purchaser’s instructions, to a destination other than the place of performance (Versendungskauf), the risk already transfers to the purchaser upon handover of the goods to the forwarding agent, freight carrier or any other person charged with the transport.

b) If contrary to paragraph 1 shipment ex external warehouse is agreed, freight shall be charged ex works; instead, a lump sum for storage may be invoiced.

c) Package shall only be charged if shipment of the goods is carried out in boxes or if the purchaser requests special packaging. In the case of freight-free return of the boxes in usable condition no later than two months from dispatch, the amount invoiced for them shall be credited to the purchaser. If returnable containers are used, the purchaser shall bear the freight costs, the seller shall bear the rental costs.

d) Partial shipments shall be permissible subject to the purchaser’s consent only.

e) The goods are to be shipped uninsured unless agreed otherwise.

f) If the purchaser is in default with acceptance, if it fails to cooperate or if delivery is delayed for other reasons for which the purchaser is responsible, the seller shall be entitled to demand reimbursement for any ensuing damage including additional expenditure (e.g. warehousing costs).

5. Interruption of delivery

a) If a delivery is disturbed by any Acts of God (höhere Gewalt), means of industrial action, official measures or other events which could not be foreseen at the time of conclusion of the contract, on which the seller cannot exert any influence and for which the seller is not responsible, the delivery period shall automatically be extended for the duration of the disturbance, however, for not more than 5 weeks, plus an adequate period for subsequent delivery. The extension of the delivery period shall not apply unless the purchaser is notified of the reason for the disturbance in writing without undue delay as soon as it can be anticipated that the aforementioned periods cannot be kept.

b) The seller reserves the right to carry out correct and timely supplies itself. This self-supply reservation shall apply under the condition that the seller has concluded a substitute purchase in due time and is not responsible for the incorrect and delayed supply by its subcontractor.

c) Interruptions of supply caused by the aforementioned events shall not be deemed breaches of contract.

6. Reporting of defects

a) The goods purchased from the seller are to be carefully inspected after receipt without delay. The goods shall be deemed to have been approved unless a notification of defects is sent by the purchaser no later than 2 weeks from receipt of the goods or if the defects were not recognisable during the careful and prompt inspection no later than 2 weeks after the defect has been discovered. If the purchaser fails to carry out a proper inspection and/or issue a proper notification of defects, any warranty obligation and any other liability of the seller shall be excluded with respect to the defect concerned. The limitation period for any claims resulting from material defects or legal imperfection in title shall be one year from transfer of risk. However, this shall not apply to the cases listed in 7 b) and c). For these cases, the statutory limitation period shall apply.

b) Any features such as colour, width, weight, finishing, design/pattern or any other details concerning the goods of the seller shall only be binding if expressly agreed in writing.

c) If the goods supplied are defective the seller shall be obliged to render subsequent performance at its due discretion, i.e. by removing the defect or supplying defect-free goods in replacement. If there actually is a defect, the seller shall bear the expenses required for the purpose of examination and subsequent performance, in particular, the costs for transport, travel, work and material. However, should a request by the purchaser to have a defect remedied prove unjustified, the seller can request the purchaser to reimburse it for the costs incurred thereby.

d) If subsequent performance should fail or be impossible or if a reasonable period set by the purchaser for subsequent performance has lapsed without success the purchaser may, at its discretion, reduce the purchase price or rescind the contract. The same shall apply if a period for subsequent performance is dispensable pursuant to statute. There shall be no right of rescission if the defects are insignificant.

7. Liability

a) In cases of intent or gross negligence, the seller shall be liable subject to the statutory provisions.

b) In the case of simple negligence, the seller shall only be liable a) for damage caused by injury to life, body or health, b) for damage caused by infringement of a material contractual duty (an obligation the satisfaction of which is essential to make possible the due implementation of the contract and compliance with which the contractual partner regularly relies on and may rely on), whereby in this case b) the liability of the seller shall be limited to compensation for the foreseeable, typically occurring damage.

c) The exclusions and limitations of liability according to paragraph 2 shall not apply if the seller concealed a defect, has assumed a warranty for the condition of the goods and for claims to which the purchaser is entitled under the German Product Liability Act (Produkthaftungsgesetz).

d) The aforementioned exclusions and limitations of liability shall to the same extent apply in favour of the legal representatives, other bodies, executives and employees of the seller and other vicarious agents.

8. Payment

a) Payment of the purchase price shall be made in advance, cash on delivery or on receipt of invoice if a line of credit has been granted. The invoice shall be issued as per the day of provision of goods. If payment is made on receipt of invoice, the purchase price shall be due and payable without any reduction no later than 30 days from the date of the invoice.

b) If the purchaser has not determined upon payment for which of any open receivables this payment should be used, payments shall always be used to settle the oldest due debit items out of several ones which are equally secure and which are equally onerous to the purchaser, plus the interest accrued thereon.

c) The postmark shall, in any case, determine the date the payment is deemed received. If payment is made via bank transfer, the day preceding the day the amount is credited to the seller’s bank account shall be deemed the date payment has been made.

9. Payment default

a) If payment is delayed, default interest in the amount of 9 percentage points above the basic interest rate shall fall due.

10. Manner of payment

a) Payment shall be made in cash, by cheque or by way of bank, giro or postal cheque transfer.

b) The purchaser shall only be entitled to a set-off if its counterclaim is undisputed or has been ascertained finally and absolutely. The purchaser shall only be entitled to assert a right of retention to the extent that its counterclaim is based on the same contract and is undisputed or has been ascertained finally and absolutely. Other reductions (e.g. for postage) shall not be permissible.

c) If at all, bills of exchange shall only be accepted in payment subject to the purchaser bearing any bank and discount charges as well as collection fees. Bills of exchange and acceptances with a term of more than 3 months shall not be accepted.

11. Reservation of title

a) The goods supplied shall remain the seller’s property until full payment has been made with regard to all current and future claims resulting from the supply contract. However, the purchaser may sell or process the goods within the ordinary course of business. Any pledge or transfer of title by way of security with regard to these goods in favour of third parties shall be excluded before all secured claims have been fully paid, unless the seller gives its consent to this in writing. If third parties have seized or attempted to seize these goods, the purchaser shall be obliged to promptly notify the seller in writing accordingly.

b) If the purchaser breaches the contract, in particular if the purchaser does not pay the purchase price due, the seller shall be entitled to rescind the agreement in compliance with the statutory provisions and to demand return of the goods on grounds of reservation of title and rescission. If the purchaser does not pay the purchase price due the seller may only assert these rights if it has previously set purchaser a reasonable deadline for payment or if such a deadline is dispensable pursuant to statute.

c) The purchaser shall be entitled to sell on and/or to process the goods under reservation of title in the ordinary course of business. In such cases, the provisions below shall apply in addition:

  • The reservation of title shall extend to the products resulting from processing, mixing or combining goods of the seller, at their full value, while the seller shall be deemed their manufacturer. If the goods are processed, mixed or combined with the goods of third parties and the ownership right of the latter still exists the seller shall acquire co-title in such processed, mixed or combined goods in proportion to the invoice value. In other respects the same shall apply to the processed product as to the goods delivered subject to the reservation of title.
  • The purchaser already now assigns to the seller by way of security the claims against third parties arising out of the resale of the good or the product in whole or in proportion to the invoice amounts in accordance with the preceding paragraph. The seller accepts this assignment. The purchaser’s duties mentioned in paragraph 2 shall also apply in view of the assigned claims.
  • In addition to the seller, the purchaser shall still be authorised to collect the claim. The seller undertakes not to collect the claim as long as the purchaser satisfies its payment obligations towards the seller, does not fall into default with payment and as long as no petition for insolvency proceedings has been filed and there is no other deficiency in its financial capacity. If this is the case, however, the seller may demand that the purchaser notify it of the assigned claims and their debtors, that the purchaser provide it with all the data required to collect the claims, that it surrender the associated documents and that the purchaser notify the debtors (third parties) of such assignment.
  • The seller undertakes to release, at its discretion, the securities it is entitled to according to the preceding provisions to the extent that their realisable value exceeds the receivables of the seller to be secured by 10 per cent, taking into account the added value pertaining thereto.

d)If the seller assumes contingent liabilities in the interest of the purchaser (payment by cheque or bill of exchange), the prolonged and extended reservation of title shall remain in force until the seller has been completely released from such obligations.

12. Applicable law

These general terms and conditions of payment and delivery as well as all other legal relationships between the seller and the purchaser shall be governed by the laws of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.

13. Deviating terms and conditions

Deliveries shall be made exclusively subject to the above general terms and conditions. Any deviating, additional or conflicting terms and conditions shall not be recognised unless the seller has given its express written consent thereto in the individual case. This requirement of consent shall also apply if the seller carries out the supply to the purchaser without any reservation although it is aware of the general terms and conditions of business of the purchaser.

14. Hierarchy of versions

This English version of the general terms and conditions of payment and delivery is a translated version of the German terms and conditions of payment and delivery. The English version is provided for convenience only.

Should there be a discrepancy between the German and the English version of the general terms and conditions of payment and delivery, the German version shall prevail and shall be legally binding.