All supply contracts, which we conclude with companies that fall under § 14 of the German Civil Code (BGB), shall be subject to these terms of sale and delivery (the 'Terms'), even if we have not explicitly contradicted a buyer's purchase conditions. Our Terms shall also apply to all future deliveries, services or offers to customers, even if they are not specifically agreed once more.
| Prices: | All prices shall be ex works and exclude VAT, customs duties, packing, cartage, freight and other ancillary services (EXW Albbruck, Incoterms 2010). The Euro prices valid on the respective shipping date shall be used for calculation purposes. |
| Payment and Invoicing: | Strictly net immediately on receipt of invoice. The purchaser may offset against our claims undisputed or legally established counter-claims only, or else counter-claims linked in a relationship requiring reciprocal performance to the sums claimed by us. We buy the products in USD. If we sell the products to the customer in EUR, we reserve the right to increase the agreed sale price accordingly if the rate of exchange from USD to EUR should change to our disadvantage by at least 5 % between the time of entering into the contract and the delivery time. The daily rate published by the European Central Bank shall be taken as a reference. If the sale price should increase, the customer shall be entitled to declare intent to withdraw from the contract within 14 days of receiving our notification of the price increase. |
| Late payment: | Default interest at the rate of 9 percentage points above the base rate will be charged for all late payments. We shall be authorized to carry out or perform outstanding deliveries or services on condition of advance payment or security being provided to us, if, after we conclude an agreement, circumstances become known to us that may significantly reduce the creditworthiness of the buyer, and compromise the making by the buyer of any payments due to us (including in relation to all single orders). |
| Goods: | Unless otherwise agreed, the goods and any operating instructions are only intended for sale in the country, in which the buyer has its registered office. |
| Packaging: | Packaging will be effected in a commercially standard manner and charged at the lowest possible price. |
| Delivery: | Delivery dates and deadlines shall be agreed on a case-by-case basis. We shall assume the procurement risk, regardless of fault, only when explicitly agreed. Agreed delivery times shall be extended accordingly if the purchaser is delayed in providing the required cooperation or desires subsequent amendments to the contract. Delivery deadlines and dates shall be deemed to have been complied with if goods are ready to be shipped and this has been notified. Where delivery ex works has not been agreed, the delivery deadline shall be deemed to have been met if we made the item to be delivered available for shipment in a timely manner. We shall not be responsible for an inability to deliver or for any delivery delays caused by force majeure or other events unforeseeable at the time the agreement was concluded (e.g., disruptions of all kinds, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining any necessary regulatory approvals or regulatory measures, or delivery being made incorrectly, late or not at all by suppliers), which we did not cause. If a temporary interference does occur, the delivery or performance deadlines or dates shall be extended or postponed for the period of the interference plus an appropriate lead-in period. If in such a case we should not expect to be able to render our performance within an appropriate period that is reasonable for the buyer - at the latest, however, within four months - we and the buyer may rescind the agreement. |
| Shipping: | Shipment shall in all cases be at the request, expense and risk of the purchaser even if, upon request by the parcel and freight receiving offices, shipments are marked 'at sender's risk' or 'defective packaging' or the like. |
| Delayed acceptance: | If the buyer delays acceptance of any delivered goods, or our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resultant damages, including additional expenses (e.g. storage costs). In this regard, we will charge a fixed fee of 0.5% of the invoice amount for the goods to be stored per elapsed week, up to a maximum of 5% of the invoice amount, commencing on the supposed date of delivery or - in the absence of such a date – upon notification of our readiness to deliver. This shall not preclude us from asserting damages exceeding the fixed fee. The buyer shall be entitled to demonstrate that we have not suffered, or only suffered significantly smaller damages than the above fixed fee. |
| Complaints and warranty claims of the buyer: | The purchaser is obliged to inspect the quality of the goods immediately upon receipt and to notify any complaints in writing without delay. If there is a defect in the purchased item, we shall be entitled to provide for subsequent performance at our option either in the form of the remedy of the defect or the delivery of a new item free from defects. In case of any such subsequent performance, we shall be obliged to meet all the necessary costs of remedying the defect, including notably transport, labour and material costs, provided these costs are not increased by the fact that the purchased item was taken to a location other than the place of performance. Should however the purchaser's claim for the remedy of a defect prove to be unfounded, we may claim compensation from the purchaser for the resultant costs, unless the purchaser could not have been aware of the fact that the item was not defective. If we fail to provide for subsequent performance, the purchaser shall be entitled at its option to seek withdrawal or a reduction in the price and/or claim damages pursuant to statutory provisions and to the subsequent 'liability' section. Except in cases of bad faith or intentional breach of obligations, warranty claims become statute-barred in principle 12 months after delivery. Claims for damages on account of negligent injury to life, limb or health, negligent breach of material contractual obligations and material defects caused intentionally by or through the gross negligence of one of our legal representatives, or by a person employed in a senior position to perform an obligation, shall become statute-barred within the statutory limitation periods. A claim for damages on account of any breach of the obligation to provide for subsequent performance pursuant to sec. 437, para. 1, 439 BGB may be made only if during the 12-month limitation period both a) the purchaser has claimed such subsequent performance and b) we have breached our obligation to provide for such subsequent performance. This shall however not affect the statutory special provisions applicable to the delivery of goods to a consumer (recourse against the supplier pursuant to sec. 478, 479 BGB). |
| Liability: | The following limitations shall apply to all liability for damages, regardless of the legal basis for such liability. We shall be liable in accordance with statutory provisions for any breach of material contractual obligations for which we are responsible, i.e. contractual obligations the performance of which forms the subject of the contract and without which the contract cannot even be properly executed, and the performance of which the other party relies upon and may rely upon. Unless we are guilty of intentional acts or gross negligence, however, we shall only be liable for typically occurring, foreseeable damages. For all other breaches of obligations, we shall only be liable if damage has been caused intentionally by or through the gross negligence of one of our legal representatives or a person employed in a senior position to perform an obligation. In this case, unless the damage was caused intentionally, we shall only be liable for typically occurring, foreseeable damages. This shall not affect our liability under the Product Liability Act; this shall equally apply to liability on account of negligent injury to life, limb or health. We shall be liable in accordance with statutory provisions for any guarantees assumed by us. Unless otherwise provided for above, no claims for damages may be brought against us as the result of any breach of an obligation. |
| Reservation of Ownership: | The goods shall remain our property up until the payment in full of all claims arising from the business relationship with us, including ancillary claims, claims for damages and the honouring of cheques and bills of exchange. The purchaser shall be entitled to reprocess and resell the goods subject to the following provisions: a) The purchaser shall be entitled to resell the purchased item in the ordinary course of business provided it does not agree to any prohibition on assignment with its customer. This entitlement shall cease to exist notably whenever insolvency proceedings are sought or initiated. If goods subject to a reservation of ownership (including where we have joint ownership) are resold, then the purchaser shall assign all the resultant claims to us in advance, including all ancillary claims and, where applicable, current account receivables, and we shall accept this assignment - where there is joint ownership, the share of the claims (invoice value) corresponding to the joint ownership share. The same shall apply with respect to other claims arising in lieu of the goods subject to the reservation of ownership or arising otherwise in relation to such goods, such as e.g. insurance claims or tort claims for loss or destruction. We hereby authorise the purchaser to collect in its own name and for our account all claims assigned to us. If the purchaser is in default of payment for a minimum of one week or if an application has been made to initiate insolvency proceedings against the purchaser's assets, we shall be entitled at any time to revoke this authorisation to collect, to disclose the assignment to the customers, to immediately collect these claims and to demand from the purchaser any information and documents that may be required in this regard. b) The processing or transformation of the purchased item by the purchaser shall at all times be performed on our behalf as manufacturer, and this shall not result in our incurring any obligations in this regard. If the goods subject to the reservation of ownership are processed with materials owned by other parties, or if the value of the processed item is higher than the value of the goods subject to the reservation of ownership, we shall acquire joint ownership in the new goods in the same proportion as the pro-rata invoice value of the goods subject to the reservation of ownership bears to the value of the new goods. In the event that we do not acquire such ownership, the purchaser hereby transfers to us as collateral its future ownership interest or, in the above-named proportion, its joint ownership of the newly created item. The same rules as apply to purchased items delivered subject to a reservation of ownership shall apply moreover to any items created through processing. c) We hereby undertake, at our option and at the purchaser's request, to release the collateral to which we are entitled as and when the value of this collateral exceeds the claims due to be secured by the same by more than 50%. d) The purchaser must store the goods subject to the reservation of ownership separately from its own or third party goods and must mark the same as being our property. The purchaser must insure the goods subject to the reservation of ownership against common risks such as fire, theft and water to the extent customary. |
| Applicable law, place of performance and court venue: | These Terms and all legal relationships between us and the buyer shall be governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). The place of performance for all obligations and court venue for all disputes in connection with this agreement shall be Albbruck. We shall moreover be entitled to sue the buyer at its place of general jurisdiction or to sue the buyer in accordance with the Rules of Arbitration of the International Chamber of Commerce in order to have the dispute finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with the said Rules. In this case the place of arbitration shall also be Albbruck. |