General terms and conditions of sale and delivery

 

General terms and conditions of sale and delivery (domestic/foreign)

(based on the terms and conditions recommended by the Mechanical Engineering Industry Associaton [MEIA])

For use vis-à-vis:

1. a person acting in the exercise of their commercial or self-employed professional activity upon the conclusion of the agreement (entrepreneur);
2. legal persons under public law or special funds under public law.

I. General

1.1.        The terms and conditions of sale of the supplier shall apply exclusively; the supplier shall not recognise general terms and conditions of business of the customer that contradict or diverge from general terms and conditions of sale and delivery of the supplier unless it expressly agreed to their application in writing. The general terms and conditions of sale and delivery of the supplier shall also apply if it carries out the delivery without reservations while being aware of general terms and conditions of the customer that contradict or diverge from its general terms and conditions of sale and delivery.

1.2.        All arrangements reached between the supplier and customer for the purpose of the execution of this agreement shall be recorded in writing in this agreement.

1.3.        The general terms and conditions of sale and delivery of the supplier shall also apply to all future transactions with the customer, even if they have not been explicitly agreed again.

1.4         Purchase and other contracts are not transferable without the consent of the supplier.

1.5.        Verbal agreements are only binding for the supplier, if and to the extent that it confirms these in writing.

1.6.        Offers submitted by the supplier are non-binding and subject to change without notice. If the supplier is awarded orders, a corresponding contract shall only come into being following written confirmation by the supplier.

II. Offer

2.1.        The documents pertaining to the offer, such as illustrations, drawings, statements of weight and dimensions, shall only be approximately authoritative unless they are expressly designated as binding. The supplier shall retain rights of title and copyright to cost estimates, drawings and other documents. They may not be made accessible to third parties.

2.2.        Declarations of acceptance and all orders must be confirmed by the supplier in writing or by fax to become legally effective. The same applies for supplements, amendments or subsidiary agreements.

2.3.        The sales representatives of the supplier are not authorised to make verbal subsidiary agreements or give verbal assurances that go beyond the content of the written contract.

III.  Scope of delivery

3.1.        The written confirmation of order of the supplier shall be decisive for the content of the agreement and the scope of performance.

3.2.        There shall be no oral ancillary agreements.

3.3.        Ancillary agreements and contractual amendments must be confirmed in writing by the supplier.

IV. Prices and payment

4.1.        Unless otherwise stated in the order confirmation, the prices of the supplier shall be in euros and ex works, including loading in the factory, but excluding packaging, freight, transfer, insurance, customs duties and the currently valid statutory VAT. In the case of partial deliveries, partial invoices shall be permissible.

4.2.        The supplier shall retain the right to increase its prices correspondingly after the expiry of four months from the conclusion of the agreement if cost increases arise after the conclusion of the agreement, especially on account of collective wage agreements or material price increases. The supplier shall prove this to the customer upon request.

4.3.        Unless the order confirmation indicates otherwise, the purchase price shall be due for payment immediately without any deduction. Deduction of discounts shall require special written agreement.

4.4.        Provided no divergent payment dates were agreed, default shall occur after the customer being reminded or 14 days after invoicing. Default interest shall be charged at 8 % above the base lending rate. This shall not exclude the assertion of additional damages.

4.5.        Notwithstanding differing provisions of the buyer, the supplier is entitled to offset payments against older debts and to inform the buyer of the type of offsetting. In the event that costs and interest have already been incurred, the supplier shall be entitled to offset the payment firstly against the costs, secondly against the interest and finally against the principal.

4.6.        A payment is only deemed to have been made once the amount has been credited to the supplier. In the event of payment by cheque, payment shall only be deemed made once the cheque has cleared.

4.7.        If the supplier becomes aware of circumstances which call the creditworthiness of the buyer into question, in particular if a cheque cannot be cashed or the payments of the buyer are discontinued, or if the supplier becomes aware of other circumstances which cast doubt on the creditworthiness of the buyer, the supplier is entitled to make the entire remaining debt payable, even if it has accepted cheques. In this case, the supplier is also entitled to demand advance payments or security payments.

V. Delivery period

5.1.        The delivery period shall begin with the despatch of the order confirmation, but not before provision of the documents, approvals and releases to be procured by the customer and receipt of the agreed payment.

5.2.        The delivery period shall have been observed if the delivery object has left the factory by its expiry or the despatch readiness has been communicated and the despatch, if this is the task of the supplier, occurs immediately.

5.3.        In the event of bindingly agreed dates or deadlines, the supplier shall not be responsible for delays in delivery and performance due to force majeure and events which render performance substantially more difficult or impossible for the supplier, including strike, lockout, official order, etc., even if they occur at suppliers of the supplier or its subcontractors. Such events shall entitle the supplier to postpone delivery or performance by the duration of the impediment plus an appropriate start-up period or to withdraw from the contract in whole or in part with regard to the part not yet performed.

5.4.        The supplier shall not be responsible either for the labour disputes, especially strikes and lockouts and the occurrence of important, unforeseen obstacles that are beyond the control of the supplier if such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery object, if they arise during a pre-existing default. The application of § 287 sentence 2 BGB shall be contractually excluded. In important cases, the supplier shall immediately inform the customer of the beginning and end of such obstacles.

5.5.        If the impediment should persist for longer than 6 months, the buyer shall be entitled, following a reasonable period of grace, to withdraw from the contract with regard to the part not yet performed. If delivery is postponed or the supplier is released from its contractual obligations, this shall not entitle the buyer to claim damages. The supplier can only invoke the aforementioned circumstances if it notifies the client without delay.

5.6.        If the despatch is delayed at the wish of the customer, beginning one month after notification of the despatch readiness, it shall be charged the costs arising as a result of storage, in the event of storage in the factory of the supplier at least 0.5 % of the invoice amount, unless the customer proves that no loss arose at all, or one that was much lower

5.7.        However, the supplier shall be entitled, after the setting and unsuccessful expiry of an appropriate period, to dispose of the delivery object otherwise and to supply the customer after an appropriately extended period.

5.8.        The course of the delivery period shall be suspended as long as the customer has not completely met its contractual obligations – which shall also include the provision of sample material (e.g. packaging material and filling).

VI. Transfer of risk and receipt

6.1.        The risk shall pass at the latest with the provision of the delivery components on the ramp of the supplier to the customer.

6.2.        The transfer of risk upon provision of the delivery components on the ramp of the supplier shall also be regarded as agreed if partial deliveries are made or the supplier has also assumed other services, such as set-up and start-up.

6.3.        Should the despatch be delayed on account of circumstances for which the customer is responsible, the risk shall pass to the customer from the day of despatch readiness; however, the supplier shall be obliged to provide the insurance the customer wishes at the latter’s expense.

6.4.        Delivered objects that only have minor defects must be accepted by the customer without prejudice to its rights from section VIII or any statutory claims.

6.5.        The supplier is entitled to make partial deliveries and render partial performance at any time.

VII.      Retention of title

7.1.        All goods delivered shall remain the property (conditional goods) of the supplier until the fulfilment of all claims, in particular also the respective balance claims to which the supplier is entitled within the scope of the business relationship. This also applies to future and conditional claims, e.g. from bills of exchange, and also if payments are made on specially designated claims, and for claims which are unilaterally established by the insolvency administrator by way of the power of enforcement. In the event of conduct of the customer in breach of the agreement, especially default of payment, the supplier shall be entitled to repossess the delivery object. The repossession or assertion of the reservation of title shall not require any rescission by the supplier. These actions or the attachment of the delivery object by the supplier shall not constitute rescission of the agreement unless the supplier had expressly declared this in writing. After repossession of the delivery object, the supplier shall be authorised to realise its value. The proceeds of the realisation must be set off against the liabilities of the customer – minus appropriate realisation costs.

7.2.        Should reservations of title be ineffective in a foreign state, provided its law is applicable, the customer shall be obliged to cooperate in all measures, especially by making all declarations required on its part, in order to procure collateral for the supplier that is equivalent to a reservation of title.

7.3.        The customer shall be obliged to treat the delivery object carefully and on the request of the supplier to insure it adequately against damage for the duration of the reservation of title. The customer shall already assign claims from the insurance to the supplier.

7.4.        In the event of attachments or other interventions of third parties, the customer must immediately inform the supplier in writing so that the supplier can bring a suit pursuant to § 771 ZPO [Civil Procedure Code]. If the third party is not in a position to reimburse the supplier the court and out-of-court costs of a suit pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by the supplier. In the event of any and all pledges, the buyer must in particular notify the enforcement officer that the attached item is the property of the supplier. It must immediately send the supplier the list of asset seized and confirm to it in writing that the attached item is the supplier’s property. If the supplier’s property is damaged as a result of seizure by third parties, this must be compensated by the buyer. The buyer shall bear all costs arising as a result of the supplier’s intervention.

Pledges, transfers of ownership as collateral and transfers of the goods owned by the supplier or the claims assigned to the supplier are expressly prohibited.

7.5.        The customer shall be entitled to sell the delivery object in the normal course of business; however, it shall already assign all claims to the amount of the total invoice sum (including VAT) due to it from the resale from its customer or third parties, irrespective of whether the delivery object was sold without or after further processing. The customer shall also remain entitled to collect these claims even after assignment; this shall not affect the authority of the supplier to collect the claim itself. However, the supplier shall undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds received, is not in default of payment and in particular no application for the opening of insolvency proceedings has been submitted or there has been [no] cessation of payments.

If the obligation to non-collection lapses, the supplier can demand that the customer discloses the assigned claims and their debtor to the supplier, provides all information required for collection, hands over the documents associated and notifies the debtors of the assignment.

7.6.        The processing or transformation of the delivery object by the customer shall always be performed for the supplier. If the delivery object is processed with other objects that do not belong to the supplier, the supplier shall acquire co-title to the new object in proportion to the value of the delivery object to the other processed objects at the time of their processing. Moreover, the same shall apply to the object created by processing as to the object subject to reservation.

7.7.        If the delivery object is inseparably mixed with or connected to other objects not belonging to the supplier, the supplier shall acquire co-title to

the new object in proportion to the value of the delivery object to the other mixed or connected objects at the time of mixing or connection. If the mixing or connection occurs in a manner that the object of the customer is to be regarded as the main object, it shall be regarded as agreed that the customer transfers the proportional co-title to the main object to the supplier. The customer shall preserve the sole or co-title created in this way for the supplier.

7.8.        The supplier shall undertake to release the collateral to which it is entitled on the request of the customer if the realisable value of its collateral exceeds the claims to be secured by more than 10 %; the supplier shall be responsible for the selection of the collateral to be released.

7.9.        If the law in whose domain the delivery object is located does not permit reservation of title, the supplier can exercise all the rights it can reserve to the delivery object. The customer shall be obliged to cooperate in measures that aid the supplier in the protection of its right of title or another right of security to the delivery object in its place.

VIII.     Defect liability

8.1.        The customer shall be obliged to inspect the delivery object carefully after its arrival at the customer’s premises for completeness and orderly condition. The period for complaints in the meaning of § 377 (1) and (2) of the German Commercial Code [HGB] shall be eight days; the receipt of a written complaint (also by fax) at the supplier’s shall be decisive.

8.2.        If the customer intends to assert claims on account of defects of the delivery object, it must hand over or send the delivery object found fault with, or parts of it, to the supplier for examination unless this is not technically possible or reasonable (e.g. in the case of permanently installed major installations). In the case of a defect complaint that is justified and within the period set, the supplier shall correct the defects by means of subsequent specific performance at its discretion by elimination of the defect or by delivery of a defect-free object. In this respect the supplier shall bear the costs of eliminating the defect – including the costs of transport, the route, work and material required. This shall also apply to the costs for transfer or despatch according to sentence 1 to the normal extent. If the defect elimination costs are increased because the delivery object had been transported by the customer to a place other than the place of performance, the customer shall bear the additional costs.

8.3.       The supplier shall be entitled to refuse subsequent specific performance according to the statutory provisions. In the event of refusal of subsequent specific performance, its failure or it being unreasonable for the customer, it shall be entitled to rescission or to abatement (reduction) of the purchase price pursuant to the provision of subsection 4 below.

8.4.        The customer shall only be entitled to rescind the agreement (provided rescission is not legally excluded) or to reduce the purchase price, after the unsuccessful expiry of an appropriate period of grace set by it for subsequent specific improvement, unless setting a period of grace can be dispensed with according to the legal regulations. In the event of rescission, the customer shall be liable for deterioration, destruction and unexploited benefits, not just with the same diligence for its own affairs, but also for any negligence and intent.

8.5.        The provisions in section IX shall apply to any claims to damages and claims to compensation for expenses of the customer.

8.6.        The liability for defects of the supplier shall lapse if the customer did not follow the operating and maintenance instructions, made changes to the delivery object, changed parts or employed consumable materials that did not meet the original specifications, unless the customer proves that these were not responsible for the defect. Liability for defects to the delivery object or to the individual parts due to normal wear shall in general be excluded.

8.7.        The statutory period of limitation claims shall be a year, calculated from the beginning of the statutory limitation period. In the case of a structure and an object that, according to its normal manner of use, is used for a structure and led to it being defective, the statutory period of limitation shall apply in instead, §§ 438 (1) no. 2 and 634 a (1) no. 2 BGB. The statutory periods shall also apply in the case of intent and fraud and in the cases of §§ 478, 479 BGB.

IX. Liability of the supplier, exclusion of claims to damages

Unless otherwise determined in these general terms and conditions, the supplier shall be liable exclusively as follows:

9.1.        The supplier shall be liable according to the statutory provisions if the customer asserts claims to damages or compensation (below: claims to damages) based on intent or gross negligence – including intent or gross negligence of its representatives or agents, if the supplier culpably breached an important contractual obligation and in the cases of injury to life, limb or health.

9.2.        Claims to damages for the breach of an important contractual obligation shall be limited to damage that is typical and foreseeable.

9.3.        Otherwise, liability for damage compensation shall be excluded without regard to the legal nature of the claims asserted. The supplier shall in particular not be liable for damage that did not arise on the delivery object itself.

9.4.        The mandatory provisions of the Product Liability Act shall be unaffected.

9.5.        Expense compensation claims of the customer shall be restricted to the amount of the interest that it has in the fulfilment of the agreement.

9.6.        If the liability of the supplier is excluded or restricted, this shall also apply to the personal liability of its staff, workers, employees, representatives and agents.

9.7.        The customer is aware and acknowledges that according to German law all claims to warranty or guaranty shall be excluded if the customer changes any parts of the objects delivered according to this agreement. This exclusion of claims shall apply in particular, but not exclusively, to the (operating) software of the objects supplied. In addition, the supplier shall inform the customer that any changes to the objects delivered might well breach the intellectual property rights of the supplier; the customer hereby confirms that it is aware of this.

X Right of the customer to rescission

10.1.     The customer can rescind the agreement if complete performance becomes impossible for the supplier before the transfer of risk. The same shall apply to inability of the supplier. If the impossibility / inability apply to essential contractual obligations, section IX shall apply. The customer can also rescind the agreement if in the case of the order of similar obstacles, the execution of a portion becomes impossible in terms of the number and it has a legitimate interest in rejecting partial delivery; if this is not the case, the customer can reduce the counterperformance correspondingly.

10.2.     If there is a default of performance in the meaning of section V of the terms and conditions of delivery, and the customer grants the defaulting supplier an appropriate period of grace with the express declaration that it would refuse acceptance after the expiry of this period of grace, and the period of grace is not observed, the customer shall also be entitled to rescind the agreement.

10.3.     If the impossibility occurs during acceptance default or through the fault of the customer, it shall remain obliged to counterperformance.

10.4.     In addition, the customer shall be entitled to rescission if the improvement or substitute delivery of a defect for which the supplier is responsible in the meaning of the terms and conditions of delivery fails as a result of the former’s fault within an appropriate period of grace set by the customer. The right of rescission of the customer shall also exist in the event of the impossibility or permanent incapability of improvement or substitute delivery by the supplier.

XI. Right of the supplier to rescission

11.1.     The agreement shall be appropriately adjusted in the event of unforeseen events in the meaning of section V of the terms and conditions of delivery if they considerably alter the economic meaning or content of the performance or considerably affect the operation of the supplier and in the event of the impossibility of implementation emerging subsequently

11.2.     If adjustment of the agreement is economically untenable, the supplier shall be entitled to rescind the agreement in whole or in part. The customer shall have no claims to damages on account of such rescission.

11.3.     If the supplier wishes to make use of the right of rescission, it must notify the customer of this immediately after realising the consequences of the event even if an extension of the delivery period had initially been agreed with the customer.

XII.      Design modifications

The supplier reserves the right to make changes to the design at any time. However, it is not required to make such changes to products already delivered.

XIII.     Non-disclosure

Unless otherwise expressly agreed, any and all information provided to the supplier together with orders shall not be considered as confidential.

XII.      Place of performance, legal venue, applicable law, further terms and conditions of business, final provisions, acceptance

12.1.     The place of performance for delivery shall be the particular despatch location, Bad Oeynhausen for payment.

12.2.     Bad Oeynhausen shall be the exclusive legal venue, also for bill of exchange, cheque and deed proceedings, notwithstanding the right of the supplier to invoke the court generally responsible for the seat of the customer.

12.3.     The legal relations between the supplier and customer shall be regulated according to substantive German law to the exclusion of the UN Convention on the International Sale of Goods (CISG) and the rules of international private law.

12.4.     The delivery objects shall be designed, produced and configured according to the applicable legal provisions in the Federal Republic of Germany. If the customer desires the configuration of the delivery objects according to provisions that diverge from the German regulations, it must communicate this upon ordering or directly thereafter. At the same time, it must transmit the provisions diverging from the German provisions in German or English. The right to an appropriate adjustment of the price and delivery dates made necessary by a request of the customer shall remain reserved.

12.5.     It is the concern of the foreign customer to take measures that exceed the legal provisions applicable in the Federal Republic of Germany to aid the protection of the operating personnel and other persons against any chemical, biochemical, electric, electromechanical, electroacoustic and similar influences of the machines, packing material, packing equipment and filling.

12.6.     Should individual provisions of these general terms and conditions of business be or become invalid, this shall not affect the validity of the remaining provisions. The contractual partners shall be obliged to agree on a new provision that comes closest to the purpose pursued with the provision that has become invalid.

12.7.     In the event of regulatory gaps due to a lack of contractual arrangements, the contracting parties undertake to immediately work towards an agreement which corresponds legally and economically to what they intended, taking into account the overall content of the contract and these terms and conditions.

12.8.     These terms and conditions shall only apply to deliveries. Our “general terms and conditions for repair and assembly (domestic / foreign)” shall apply to repair and assembly work.

The above terms and conditions are the general terms and conditions of sale and delivery (domestic / foreign) of:

Ceramic and Steel Technology Germany GbmH & Co.KG, Hellerhagener Str. 103, D – 32545 Bad Oeynhausen