Terms and Conditions of Sale
1.1 These terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
1.2 These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms.
1.3 These terms and conditions of sale shall only apply vis à vis merchants, governmental entities, or special governmental estates within the meaning of sect. 310 para. 1 BGB (German Civil Code).
2 OFFER, CONCLUSION OF CONTRACT
Our offers are subject to change and non-binding. Orders are only valid if confirmed by us in writing or if recognised by us through the act of delivery. Any additional verbal agreements, supplements and modifications are also only valid if confirmed in writing.
3 DELIVERY, DEFAULT
3.1 Unless otherwise agreed, any dates quoted for delivery are non-binding.
3.2 We are entitled to make partial deliveries as far as the purchaser must reasonably accept this in the circumstances of an individual case. The corresponding invoices issued are payable without regard to whether complete delivery has been made.
3.3 In the event delivery is delayed, the purchaser may set us a reasonable grace period with the notice that he rejects the acceptance of the delivery item after expiry of the grace period. After the expiry of the grace period, the purchaser is entitled to cancel the contract of sale through written notice or to request damages instead of performance. At our request the purchaser
is obligated to state within a reasonable period whether he cancels the contract due to delay in delivery or insists on performance.
3.4 Our liability is set forth in para. 10. Furthermore in the event of slight negligence, our liability is limited to the invoice value of
the respective delivery item.
3.5 Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved.
3.6 In case of default in acceptance or other breach of duties to cooperate by the purchaser we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.
4 RETURN OF LOAN PACKAGING
In the event of delayed return (meaning in the event normal unloading times are exceeded) of loading equipment, loading tanks and other loan packaging we reserve the right to charge the purchaser for the costs incurred by us.
Unless otherwise expressly agreed, prices are quoted "ex works", excluding packaging and plus delivery and shipping costs as well as plus any applicable Value Added Tax.
6.1 The payment shall be made in Euro of our bank account indicated on the reverse side.
6.2 The purchase price is due and payable net within 30 days from receipt of the proper invoice.
6.3 Should the purchaser be in arrears payment, interest for default shall be due and payable at 12 %, but at least 8 % above the respective base interest rate. We reserve the right to claim further damages. If the interest we claim is higher than the statutory interest for delayed payment, the purchaser has the right to demonstrate lower damages just as we have the right to show that greater damages were incurred.
6.4 Should the purchaser be in arrears with payment or should there be reasonable doubts as to the purchaser's solvency or credit rating, we are – without prejudice to our other rights – entitled to require payment in advance for deliveries not yet made, and to require immediate payment of all our claims arising from the business relation.
6.5 Bills of exchange and cheques shall be accepted upon separate agreement and only by way of payment. All expenses incurred in this regard shall be borne by the purchaser.
7 OFFSET, RETAINER
The purchaser shall be entitled to offset only insofar as the purchaser's counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
8 FORCE MAJEURE
Events of force majeure, in particular strikes, lock outs, operation of transport interruptions, including at our suppliers, shall suspend the contractual obligations of each party for the period of the disturbance and to the extent of its effects. Should the delays caused exceed a period of 6 weeks, both parties shall be entitled to cancel the contract, with respect to the contractual performance affected by such delays. No other claims exist.
9.1 All our data, especially data relating to product suitability, processing and use, as well as to technical support, have been compiled to the best of our knowledge. The purchaser, however, must still perform his own inspections and preliminary trials.
9.2 The purchaser undertakes to examine the goods immediately after delivery with respect to any defects concerning quality and suitability of purpose and object to ascertainable defects. Sample testing shall also be performed if this can be reasonably expected of the purchaser. Failure to proceed in aforesaid manner shall result in the goods being regarded as accepted.
9.3 Complaints must be made within 8 days after receipt of the goods. In case of hidden faults, however, complaints are to be made immediately on discovery, within one year after receipt at the very latest. Said claims shall only be taken into consideration if and when made in writing and with the relevant documentation attached. To comply with the time limit it shall be sufficient if the complaint is sent in good time.
9.4 We are not liable on the basis of public statements by us, the manufacturer or his agents, if we were not aware of the statement or were not required to have knowledge thereof, the statement was already corrected at the time of the purchase decision or the purchaser cannot show that the statement influenced his purchase decision.
9.5 We are not liable for defects which only marginally reduce the value or the suitability of the object. A marginal defect exists in
particular if the defect can be removed by the purchaser himself with insignificant effort.
9.6 If the purchaser requests replacement performance due to a defect, we may choose whether we remove the defect ourselves or deliver a defectfree object as a replacement. The right to reduce the price or cancel the contract in the event of unsuccessful replacement performance shall remain unaffected.
9.7 Where complaints are justified, the goods may only be returned to us at our expense if after we receive notice of the defect we do not offer to collect or dispose of the goods.
9.8 If increased costs arise because the purchaser has transferred the goods to a place other than his commercial place of business, we shall charge the purchaser for the increased costs in connection with the remedying of the defect, unless the transfer corresponds to the designated use of the object.
9.9 Damage and claims for reimbursement of expenses shall remain unaffected as far as not excluded by para. 10.
9.10 All claims due to a defect are subject to a limitation period of one year after delivery of the object. No warranty is made for used objects.
9.11 The rights of the purchaser under §§ 478, 479 German Civil Code remain unaffected.
10.1 In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.
10.2 Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
10.3 Any liability not expressly provided for above shall be disclaimed.
11 RESERVATION OF OWNERSHIP
11.1 The goods that have been sold remain our sole property until all outstanding debts arising from the business connection with the purchaser have been paid in full. The purchaser has power of disposal of the purchased goods in the ordinary course of business, or he may process the goods until revocation by us.
11.2 Reservation of ownership and power of disposal, as laid down in clause 11.1, also apply to the full value of the manufactured goods produced by processing, mixing and blending or combining our goods. In each case we qualify as the manufacturer. In cases where the goods are processed, mixed and blended, or combined with those of a third party, and where the reservation of the latter continues to apply, then we acquire joint ownership in proportion to the invoice value of those processed goods. If security rights of a third party are in fact or in law below that share, the difference will be to our benefit.
11.3 If the purchaser resells our goods to third parties he hereby assigns the entire resulting payment claim – or in the amount of our joint share therein (see para. 11.2) – to us. In the event the parties agree on a current account, the respective balance amounts shall be assigned. However, the purchaser shall be entitled to collect such payment claim on our behalf until we revoke such right or until his payments are discontinued. The purchaser is only authorized to make assignment of these claims – even only for the purpose of collection by way of factoring – with our express written consent.
11.4 The purchaser shall immediately give notice to us if any third party raises any claim with respect to such goods or claims which are owned by us.
11.5 If the value of the collateral exceeds our accounts receivable by more than 20% then we will release collateral on demand and at our discretion.
11.6 We are also entitled to take back goods on the basis of the reservation of title, even if we have not previously cancelled the contract. If products are taken back by way of the exercise of the reservation of ownership, this shall not constitute cancellation of the contract.
11.7 If the laws of the country in which the goods are located after delivery do not permit the vendor to retain the title to said goods, but allow the retention of other similar rights to the delivery item, the purchaser shall provide us with such other equivalent right. The purchaser undertakes to assist us in the fulfilment of any form requirements necessary for such purpose.
12 PLACE OF PERFORMANCE, APPLICABLE LAW, JURISDICTION, ENGLISH TEXT SERVES ONLY FOR INFORMATION
12.1 The originating point of the goods shall be the place of fulfillment for the delivery. 87493 Lauben shall be the place of fulfillment for payment.
12.2 Exclusively the laws of the Federal Republic of Germany shall apply between the parties. The application of the 1980 United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
12.3 If the purchaser is a merchant or does not have a general place of jurisdiction in Germany, the place of jurisdiction is Kempten/Allgäu. We shall, however, have the right to also bring a claim against the purchaser at his general place of jurisdiction.
12.4 This text shall be governed by and construed in accordance with the laws of Germany. The English version of this text serves only for information and is not part of this legal transaction. Therefore, in the event of any inconsistency between the German and the English version, only the German version shall apply.
Lauben, January 2014