These Terms of Sale, Delivery and Payment have been prepared in German language and translated into English. Should any doubts arise about the interpretation of these Terms of Sale, Delivery and Payment, the German version shall prevail.
We conduct business transactions solely on the basis of the following Terms. We do not recognize or accept the Customer’s contrary or deviating terms and conditions unless we have expressly agreed to their application in writing. A waiver of this written form must be made in writing as to be effective. Solely the laws of the Federal Republic of Germany apply, with the exclusion of The Hague Convention Relating to a Uniform Law on the International Sale of Goods.
Our offers are subject to change without notice. We are entitled to raise our prices accordingly if our costs increase. The Customer’s order requires our written confirmation to be deemed as accepted. Our silence in response to the Customer’s order does not constitute acceptance.
Our delivery times are merely approximate. Deliveries by our own suppliers shall be reserved. In the event of strikes, lockouts, or other delays beyond our control, delivery time shall be extended accordingly. If our Customer is in delay of performance with respect to his contractual duties, we are entitled to hold the goods until the delay is redressed. Our delivery time shall be extended accordingly. Delivery is deemed to be effected at the time we notify the Customer the products are ready for dispatch. We are entitled to make delivery by instalments insofar as this is reasonable for the Customer. If we are in delay of delivery, the Customer shall grant us an extension of at least three weeks before he may cancel the contract.
Weights and quantities established at the points of dispatch shall prevail. The acceptance of the product and the information in the bill of lading, delivery note and warehouse receipt, etc. on the part of the forwarding agent/carrier/warehouse keeper shall constitute evidence of the faultless packaging, loading, quantity and type of product.
All our prices are quoted ex our warehouses, not including value-added tax. Should carriage-free delivery be arranged, the agreed price shall apply only if the possibility of unimpeded, normal transport is given.
Pending the satisfaction of all our claims arising from our business relations with the Customer (including all receivables on current account), we shall be granted the following securities, which we shall surrender only at the request of the Customer and to the extent that their value shall over a sustained period of time exceed our claims by more than 20 percent. The supplied goods shall remain our property. Any conversion or processing of the reserved goods shall be effected on our behalf, without subjecting us to any obligation. Should our proprietary rights cease by virtue of amalgamation, it is hereby agreed that the property of the Customer in the unitary object shall be assigned to us pro rata of the invoice value. The Customer shall store our property free of charge. Goods in which we have a share of proprietary rights shall be deemed reserved goods. The Customer may process and resell reserved goods in the ordinary course of business insofar he is not in arrears. Seizure or assignment as security shall be impermissible. Any existing or future claims arising from the resale of reserved goods or other causes in law (for example, insurance) shall herewith be assigned to us in advance (including all claims on current account) in the name of ourselves for our own account. Until our revocation, the Customer is entitled to collect the claims assigned to us. We may revoke the authority to collect the claims assigned to us only in the event of the Customer’s payment default. Should third parties gain access to reserved goods, the Customer shall cite our proprietary rights and notify us immediately. The Customer shall be liable for costs and damages. Should the Customer be in violation of the agreement, in particular if payment is delayed, we shall be entitled to take possession of the reserved goods or to demand the transfer of the claim against third parties to return the goods. Our taking possession or seizure of goods shall not be deemed as a withdrawal from the agreement unless the Abzahlungsgesetz (Hire Purchase Act) applies. We are entitled to inspect the reserved goods or their replacements at any time. The Customer irrevocably grants us rights of access to his premises for this purpose and, if the conditions for surrender are met, the right of removal without this constituting an exercise of unlawful interference.
Invoices for contract manufacturing are payable immediately; invoices for delivered goods are payable within 30 days, in both cases without deduction. Payments shall be made in Euros. Should payment in a foreign currency be arranged expressly by separate contractual agreement, the Customer shall bear the exchange rate risk. Bills of exchange and cheques shall be regarded as payment only when cleared or honoured. A bill of exchange rendered to us shall become our property at the time of its transfer. The Customer shall bear all discount charges and other costs relating to bills of exchange. The Customer shall bear the transfer risk of payments. Decisive for determining adherence to payment deadlines is the receipt of the payment into our accounts on the final day of the payment period at the latest. In the event of a delay in payment, interest shall become due at a rate of 3% above the given base rate of the European Central Bank, unless we are subject to interest at a higher rate. We further reserve the right to claim for any additional loss or damage.
The Customer can only set off against such claims as have been expressly acknowledged or determined with unappealable effect. Rights of the Customer granted by virtue of this contract shall not be transferable to third parties. In the event of any delay in payment, including instalments paid on account, all our claims arising from the business relationship shall become due and payable immediately. Late payment releases us from the obligation to further delivery, whereby our right to uphold the contract remains unaffected. We shall have the right to terminate the contract in the event of bankruptcy or insolvency. In this case the Customer is obliged to immediately surrender the goods in our property. Our claim shall be due immediately, even if said claim is deferred or secured, if the Customer is the subject of protest of a dishonoured bill of exchange or cheque; if petitions for composition, bankruptcy or similar insolvency proceedings are filed; if a personally liable partner suspends payment. Cash payments effectively discharge the debt to us only if they are made to persons with written authority to collect. The acceptance of bills of exchange does not constitute a deferral of the underlying claims.
Notice of defect in goods supplied by us shall be given in writing immediately upon delivery, but no later then within 14 days of the Customer’s receipt of the goods. Notice of hidden defects shall be given immediately after discovery. If notice is not given in due time, the product in question shall be deemed accepted. Notice of defect cannot be given after our product has been processed. The Customer hereby agrees to afford us the opportunity to review complaints comprehensively. Should complaints concern processing or its result, the inspection shall always be performed at the place of processing. If the Customer has resold the product and his client has processed it, the Customer shall enable us to establish direct contact to his client. Our personnel shall review complaints and the Customer shall afford them access to all processing parameters for the purpose of inspection. Our general processing conditions and all supplementary notes shall be observed during processing and presented to any processing client of the Customer. If the Customer denies us inspection, the product in question shall be deemed accepted without objection. If a claim is justified, we may at our discretion repair the damage, supply a replacement or redeem the product, crediting the invoice amount to the Customer. If a defect is demonstrably attributable to our supplier, we are entitled to fulfil our warranty obligation by assigning our claims against the supplier to the Customer. The Customer is not entitled to more extensive claims, in particular claims for compensation. This liability exclusion shall not apply in case of wilful or gross negligence on the part of our executives or vicarious agents, liability due to death or injury to body or health, as well as statutory liability under the German Product Liability Act. Liability shall be excluded unless stipulated otherwise above. The statutory period of limitation for claims for defect is twelve months as of the passing of risk. The Customer is not entitled to return the product without our approval.
The venue is our place of business, provided our Customer is a fully qualified merchant under the German Commercial Code. Unless indicated otherwise in the order confirmation, our place of business shall be the place of performance.
The above provision also applies to repeat orders, later orders and acquisitions and receipt of goods, and later offers, even if we render services before confirming an order.
If any provision of this contract shall be held or become invalid, such provision shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision meeting as closely as possible the commercial purpose of the original provision.
Mühlheim am Main, August 2003
