General Conditions

I. General

1. The scope of deliveries and/or services (hereinafter referred to as “Supplies”) shall be determined by the written declarations of both Parties. General terms and conditions of the Purchaser shall apply only if and when expressly accepted by the supplier or the provider of services (hereinafter referred to as “Supplier”) in writing.
2. Partial Supplies shall be allowed, unless they are unreasonable to accept for the Purchaser.

II. Prices and Terms of Payment

1.         Prices shall be ex works (Nackenheim) and exclude packaging; value added tax shall be added at the then applicable rate.
2.         Payments shall be made free Supplier`s paying office.
3.         The Purchaser may set off only those claims that are undisputed or against wich no legal recourse is possible.

III. Retention of Title

1.         Items pertaining to the Supplies (“Retained Goods”) shall remain the property of the Supplier until each and every claim the Supplier has against the Purchaser on account of the business connection has been fulfilled. If the combined value of the security interests of the Supplier exceeds the value of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser.
2.         For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
3.         The Purchaser shall inform the Supplier forthwith of any seizure or other act of intervention by third parties.
4.         Where the Purchaser fails to fulfil its duties, including failure to make payments due, the Supplier shall be entitled to cancel the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable time set by the Supplier; the statutory provisions that a time limit is not needed remain unaffected. The Purchaser shall be obliged to surrender the Retained Goods.

IV. Time for supplies; Delay

1.         Times set for Supplies can be only observed if all Documents to be supplied by the Purchaser, necessary permits and releases, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. Unless these conditions are fulfilled in time, times set shall be extended appropriately; this shall not apply where the Supplier is responsible for the delay.
2.         If non-observance of the times set is due to force majeure such as mobilization, war, rebellion or similar events, e. g. strike or lockout, such time shall be extended accordingly.
3.         Purchasers claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 3 above shall be excluded in all cases of delayed Supplies even upon expriy of a time set to the Supplier to affect the Supplies. This shall not apply in case of mandatory liability based on intent, gross negligence, or due to injury of life, body or health. Cancellation of the contract by the Purchaser based on statute shall be limited to cases where the Supplier is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
4.         At the Suppliers request the Purchaser shall declare within a reasonable period of time whether the Purchaser cancels the contract due to the delayed Supplies or insists on the Supplies to be carried out.
5.         If dispatch or shipment is delayed at the Purchaser`s request by more than one month after notice of the readiness for dispatch was given, the Purchaser may be charged, for every month commenced, storage costs of 0,5% of the price of the items of the Supplies, but in no case more than total of 5%. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.

V. Transfer of Risk

1.         Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:
            a ) at the time when the Supplies are shipped or picked up by the carrier. Upon request of the Purchaser, the Supplier shall insure the Supplies against the usual risks of transport at the expense of the Purchaser.
2.         The risk shall pass to the Purchaser if dispatch, shipping, the start to taking over in the own works is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.

VI. Receiving of Supplies

The Purchaser shall not refuse to receive Supplies due to minor defects.

VII. Defects as to Quality

            The Supplier shall be liable for defects as to quality (“Sachmängel”, hereinafter referred to as “Defects”) as follows:
1.         All parts or service where a Defect becomes apparent within the limitation period shall, replaced irrespective of the hours of operation elapsed, provided that the reason for the Defect had already existed at the time when the risk passed.
2.         Claims based on Defects are subject to a limitation period of 12 months .This provision shall not apply where longer periods are prescribed by law in cases of injury of life, body or health, or where the Supplier intentionally or grossly negligently fails to fulfil its obligation or fraudulently conceals a Defect. The legal provisions regarding suspension of expiration (“Ablaufhemmung”),suspension (“Hemmung”) and recommencement of limitation periods remain unaffected.
3.         The Purchaser shall notify Defects to the Supplier in writing and without undue delay.
4.         In the case of notification of a Defect, the Purchaser may withhold payments to a reasonable extent taking into account the Defect occurred. The Purchaser, however, may withhold payments only if the subject-matter of the notification of the Defect occurred is justified beyond doubt. Unjustified notifications of Defect shall entitle the Supplier to have its expenses reimbursed by the Purchaser.
5.         The Supplier shall first be given the opportunity to supplement its performance (“Nacherfüllung”) within a reasonable period of time.
6.         If supplementary performance is unsuccessful, the Purchaser shall be entitled to cancel the contract or reduce the remuneration, irrespective of any claims for damages it may have according to Art. IX.
7.         There shall be no claims based on Defect in cases of insignificant deviations from the agreed quality, of only minor impairment of usefulness, of natural wear and tear or damage arising after the transfer of risk from faulty or negligent handling, excessive strain, unsuitable equipment or from particular external influences not assumed under the contract, or from non-reproducible software erros. Claims based on defects attributable to improper modifications or repair work carried out by the Purchaser or third parties and the consequences thereof shall be likewise excluded.
8.         The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, including costs of travel and transport, labour, and material, to the extent that expenses are increased because the subject-matter of the Supplies was subsequently brought to another location than the Purchaser´s branch office.
9.         The Purchasers right of recourse against the Supplier pursuant to Sec. 478 BGB is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects.
10.       Furthermore, the provisions of Art. IX (Other Claims of Demages) shall apply in respect of claims of demages. Any other claims of the Purchaser against the Supplier or its agents or any such claims exceeding the claims provided for in this Art. VII, based on a Defect, shall be excluded.

VIII. Impossibility of Performance; Adaptation of contract

1.         To the extent that Supplies are impossible to be carried out, the Purchaser shall be entitled to claim damages, unless the Supplier is not responsible for the impossibility.
            The Purchasers claim for damages shall, however be limited to an amount of 5% of the value of the part of the Supplies wich, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or injury of life, body or health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The right of the Purchaser to cancel the contract shall remain unaffected.
2.         Where unforeseeable events within the meaning of Art. IV No. 2 substantially change the economic importance or the contents of the Supplies or considerably affect the Supplier´s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. Where doing so is economically unreasonable, the Supplier shall have the right to cancel the contract. If the Supplier intends to exercise its right to cancel the contract, it shall notify the Purchaser thereof without undue delay after having realised the repercussions of the event; this shall also apply even where an extension of the delivery period had previously been agreed with the Purchaser.

IX. Other Claims of Damages

1.         Any claims for damages and reimbursement of expenses the Purchaser may have (hereinafter referred to as “Claims for Damages”) based on whatever legal reason, including infirngement of duties arising in connection with the contract or tort, shall be excluded.
2.         The above shall not apply in the case of mandatory liability, e.g. under the German Product Liability Act (“Produkthaftungsgesetz”) in the case of intent, gross negligence, injury of life, body or health, or breach of a condition which goes to the root of the contract (“wesentliche Vertragspflichten”). However, Claims for Damages arising from a breach of a condition wich goes to the root of the contract shall be limited to the foreseeable damage wich is intrinsic to the contract, unless caused by intent or gross negligence or based on liability for injury of life, body or health. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
3.         To the extent that the Purchaser has a valid Claim for Damages according to this Art. IX, it is shall be time-barred upon expiration of the limitation period applicable to Defects pursuant to Art. VIII No. 2. In the case of claims for damages under the German Product Liability Act, the statutory provisions governing limitation periods shall apply.

X. Venue and Applicable Law

1. If the Purchaser is a businessperson, sole venue for all disputes arising directly or indirectly out of the contract shall be the Supplier´s place of business. However, the Supplier may also bring an action at the Purchaser´s place of business.
2. Legal relations existing in connection with this contract shall be governed by German substantive law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XI. Severability Clause

The legal invalidity of one or more provisions of this contract shall in no way affect the validity of the remaining provisions. This shall not apply if it would be unreasonable for one of the parties to continue the contract.