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Terms of service

As of: 01.11.2010

  1. Scope
    1. The following Standard Terms and Conditions shall apply to any and all contracts for the delivery of goods concluded between a purchaser/orderer and ourselves. They shall also apply to any future business relations even if not expressly agreed again. Unless expressly accepted by us in writing, no deviating terms and conditions of the purchaser/orderer shall be binding for us, even if we do not expressly oppose the same. The following Standard Terms and Conditions shall also apply if we execute the purchaser's/orderer's order without any reservation even though we are aware of any conflicting or deviating terms and conditions of the purchaser/orderer. Our acquiescence or non-objection neither implies our submission to partially deviating terms and conditions of the purchaser/orderer.
    2. Any and all understandings on the performance of the purchase contracts agreed between the purchaser/orderer and ourselves shall be laid down in writing in the contracts.
    3. Any and all understandings by and between ourselves and the purchaser/orderer shall be laid down in a written contract. No deviating collateral agreements, no reservations as regards names, no amendments to such contract or the cancellation of such contract, and no oral agreements and/or warranties of our sales personnel not authorized to enter into contracts shall be binding unless confirmed by us in writing. The same shall also apply to any information contained in public statements made by us and/or by a producer and/or its agents (sec. 434 (1), 3 of the German Civil Code (BGB))
    4. Our Standard Terms and Conditions shall only apply to transactions with business enterprises, public-law entities and special funds under public law (sec. 14, 310 BGB).
  2. Rights of exploitation and use
    1. We reserve without limitation any and all proprietary and/or copyright rights of exploitation in any documents including but not limited to design drawings and plans that have become part of the respective contractual relationship. Such documents may not be made available to any third parties unless we have given our prior consent, and must be immediately returned to us upon request if the order was not placed by us.
    2. In this respect, the stipulations of paragraph 1 shall apply accordingly to any documents supplied by the purchaser/orderer. Such documents may only be made available to third parties who were validly entrusted with the performance of deliveries or services within the context of the contractual relationship.
  3. Quotation, conclusion of contract
    1. Our quotations shall always be subject to confirmation and not binding, unless we have expressly stated the same to be binding.
    2. The stated prices shall be based on the conditions applicable at the date of the quotation. Sales prices shall only be fixed prices if the same have been agreed by us in writing or we have designated the same as fixed prices.
    3. Requests for deliveries as well as modifications and supplements thereof shall only be valid if made in writing. Requests for deliveries may also be made by data transmission.
    4. A binding contract shall only be concluded with our written acknowledgement of the order.
    5. Qualities and dimensions shall be governed by the DIN / EN standards and/or material specifications applicable at the time of the conclusion of the contract or, in the absence of such standards or specifications, by trade practice. Data contained in quotations, brochures and acknowledgements of orders shall be approximate data and shall only serve as a guideline unless they are expressly identified by us to be binding. Samples and specimens shall be considered approximate illustrations of quality, dimensions and execution.
    6. Kind and scope of our performance shall be defined by our written acknowledgement of the order. We shall have the right to make partial deliveries. Hence, the purchaser/orderer may not reject partial deliveries and/or partial performance.
  4. Terms of payment
    1.  All prices shall be stated in euros. Depending on the specific agreements, the prices will be quoted either free domicile, including packing and shipping costs and net of value added tax, or ex works, including packing and net of shipping costs and net of value added tax. Not included in the prices shall be customs duties or other export levies; these costs shall be paid separately by the purchaser/orderer.
    2. If a purchaser/orderer resident outside the Federal Republic of Germany (non-resident customer) or its agent collects goods or transports or sends the same abroad, the purchaser/orderer shall furnish us with the proof of exportation required for tax purposes. If no such proof of exportation is furnished, the purchaser/orderer shall pay the turnover tax on the invoice amount applicable to deliveries within the Federal Republic of Germany.
    3. No cash discount shall be permitted unless expressly agreed in writing by and between ourselves and the purchaser/orderer. The purchase price shall be due and payable net (without any deduction) immediately upon receipt of the invoice by the purchaser/orderer unless a different payment period is stated in our acknowledgement of the order. Payment shall only be deemed made once we can dispose of the amount. In case of payment by cheque, payment shall only be deemed made after the cheque has been honoured and the subsequent period for countermanding payment has expired.
    4. If the purchaser/orderer should default on a payment, the statutory regulations shall apply. However, if the purchaser/orderer has fallen behind with its payments, we shall in particular have a right to withhold performance and/or the right to suspend processing of the orders until all arrears have been paid up. Any payments made will at our option be set off against existing accounts receivable even if the purchaser's/orderer's terms stipulate otherwise.
    5. The right of offsetting against counterclaims shall only be permitted to the extent the respective counterclaim is undisputed, has been acknowledged or has been finally determined. The purchaser/orderer may only exercise any right of retention if its counterclaim originates from the same contractual relationship.
    6. No assignment of claims against us shall be permitted unless we have given our prior written consent.
    7. We may verify the creditworthiness of purchasers/orderers with the customary means.
    8. If this verification raises doubts as to the creditworthiness of the purchaser/orderer or otherwise if there is a material deterioration in the financial conditions of the purchaser/orderer, we shall have the rights defined by sec. 321 BGB. We may also after the conclusion of the contract make deliveries, including but not limited to partial deliveries, only against advance payment or against cash and may accelerate any and all accounts receivable not yet due under the current business association with the purchaser/orderer.
    9. Under the authorization granted us by the subsidiaries belonging to our group of companies, we have a right of setoff against any accounts receivable due to the purchaser/orderer from us or from one of the said subsidiaries on whatever legal grounds. This shall also apply if cash payment was agreed with one party and payment by bill of exchange or other services in lieu of performance with the other. As the case may be, these agreements may only apply to the balance. If the accounts receivable are due at different times, our accounts receivables shall in this respect become due no later than at the due date of our accounts payable and shall be settled with that value date.
  5. Reservation of title
    1. We reserve the title to the delivered thing and/or goods until full payment of all accounts receivable, including but not limited to the respective balances, due to us under our business relations (current account reservation). The current account reservation shall terminate finally with the payment of all accounts receivable outstanding at the time of payment and covered by this current account reservation. The reservation of title shall also apply to future and conditional accounts receivable and also if payment was made on account of specified receivables.
    2. As long as the title has not yet passed to the purchaser/orderer, the purchaser/orderer shall handle the object of the sale and/or the contract goods with care. In particular, the purchaser/orderer shall at its own cost procure an adequate insurance cover for the same against theft and impairment at replacement value. If any maintenance or inspection work is required, the purchaser/orderer shall perform such work in time and at its own costs. As long as the title has not yet passed, the purchaser/orderer shall inform us without delay and in writing of any attachment or other intervention of third parties. To the extent such third party is unable to compensate us for the judicial and extra-judicial costs of filing a complaint under sec. 771 of the German Code of Civil Procedure (ZPO), the purchaser/orderer shall be liable for any loss incurred by us.
    3. The purchaser/order may resell and/or use goods that are subject to a reservation of title and/or the contract goods in its ordinary course of business. The purchaser/order already now assigns to us the accounts receivable arising out of the resale of goods that are subject to a reservation of title in the amount of the final invoice amount (including value added tax) that was agreed with us, and we herewith accept such assignment. This assignment shall be applicable irrespective of whether the purchased item is resold without or after processing. The purchaser/orderer shall also after the assignment continue to be authorized to collect the accounts receivable. Our own right to collect the accounts receivable ourselves shall remain unaffected. However, we shall not collect the accounts receivable as long as the purchaser/orderer complies with its payment obligations from the collected proceeds, has not fallen behind with its payments, and in particular as long as no petition in insolvency has been filed and/or no suspension of payment has occurred.
    4. Any processing or transformation of the object of sale and/or contract goods by the purchaser/orderer shall always be made in our name and on our behalf without creating any obligations on our part. In this case, the inchoate title of the purchaser/orderer to the object of sale shall continue in the transformed item. To the extent the object of sale or contract goods is/are processed together with other goods not owned by us, we shall acquire a co-owner's interest in the resulting product in proportion of the objective value of our object of sale and/or contract goods to the value of the other processed goods at the time of their processing. The same shall apply to mingling. To the extent, the mingling occurs in a way that the purchaser's/orderer's thing is considered to be the main thing, the purchaser/orderer shall transfer to us on a pro-rata basis the proprietary interests belonging to it and shall preserve same free of charge on our behalf. To secure our claim against the purchaser/orderer, the purchaser/orderer shall also assign to us any claims the purchaser/orderer may have against a third party as a result of the combination of the goods that are subject to a reservation of title with a piece of land, and we herewith accept such assignment.
    5. If and to the extent the invoice value of the existing securities exceeds the accounts receivable including ancillary claims (interest, costs, etc.) secured thereby by more than 50 per cent, we shall release securities of our choice if so requested by the purchaser/orderer.
  6. Times for deliveries of goods and provision of services; default
    1. The adherence to times for deliveries of goods and provision of services shall be conditional upon the timely receipt of all documents, required licenses, approvals, and clearances, including but not limited to drawings and plans, to be supplied by the purchaser/orderer as well as upon the compliance with the agreed terms of payment and other obligations by the purchaser/orderer. If the purchaser/order fails to satisfy these conditions in time, the respective period shall be reasonably extended.
    2. All delivery periods and/or delivery dates shall be subject to confirmation and shall only be approximate unless they have been expressly acknowledged by us in writing as being binding. Any period of grace to be granted to us shall be reasonable.
    3. The delivery period shall commence with the sending of the final acknowledgement of the order or the clarification of all details of the execution and all engineering details, whichever is later.
    4. The delivery period shall be deemed kept if the consignment ready for dispatch is dispatched or collected within the agreed time for the delivery of the goods or the provision of the service. If the delivery is delayed for reasons for which the purchaser/orderer is responsible, the delivery or provision of service shall be deemed made in time if the advice that the consignment is ready for dispatch is sent within the agreed time.
    5. If the purchaser/orderer fails to take delivery of the goods when they are tendered or if the purchaser/orderer violates any other duty to cooperate, we may demand compensation of the damage suffered by us as a result, including, without limitation, any extra expenses incurred. We reserve the right to assert further claims. If the purchaser/orderer fails to take delivery of the goods when they are tendered or if the purchaser/orderer violates any other duty to cooperate, the risk of accidental loss or accidental deterioration of the supplied goods shall pass to the purchaser at the time at which the purchaser fails to take delivery (default in acceptance) or is in delay in performing another obligation (default of the obligor) or has violated any other duty to cooperate.
    6. If the non-observance of the respective period is the result of force majeure, e.g. mobilization, war, riots or similar events such as strike or lockout, the period shall be appropriately extended. Circumstances beyond our control shall also include difficulties in procuring the supplies (including raw materials) required for the delivery as well as the validly outsourced services.
    7. If the purchaser can rightfully claim that as a consequence of a delay in delivery for which we are responsible it has no further interest in the performance of the contract, our liability shall be limited to the typical loss or damage that may reasonably be expected, unless the delay in delivery was due to an intentional violation of the contract for which we are responsible, and in this respect any fault of our representatives or vicarious agents shall be attributable to us.
    8. If the purchaser/orderer is responsible for a delay in the dispatch or transport of the goods or the provision of the services by more than one month after the purchaser/orderer has been advised of the readiness for dispatch or transport or for provision of the service, we shall be entitled to demand a storage fee in an amount of 0.5% of the price of the objects of the delivery or the value of the service for each month or part thereof, provided that in the aggregate such storage fee shall be limited to 5% of such price or value. The contractual parties may furnish evidence of higher or lower storage costs.
  7. Force majeure
    Any circumstances or events resulting from force majeure shall release us from our contractual obligations for the duration of their occurrence and the scope of their effect. Equivalent to force majeure shall be all circumstances beyond our control which make it impossible or unreasonably difficult for us to perform the contract, for example regular strikes or lockouts, war, civil war, civil commotion, import and export bans, shortage of energy and raw materials, official measures.
  8. Dispatch and passage of risk
    1. Place of performance for delivery and payment shall be Netphen-Deuz, hence our registered office.
    2. We shall be free to choose the shipping route, the means of transport, the forwarder and the carrier.
    3. If the purchaser/orderer has been informed according to the contract that goods are ready for dispatch, the purchaser/orderer shall request delivery of the same without delay. If the purchaser/orderer fails to do so and a corresponding reminder has been sent to the purchaser/orderer, we may at our option and for the account and at the risk of the purchaser/orderer dispatch the said goods or store them at our discretion and invoice them immediately.
    4. We may deliver via another route and to another destination if the transport via the planned route or to the planned destination is impossible or materially impeded in the planned time without our fault.
    5. In all transactions, in particular in our free-domicile deliveries, the risk including but not limited to the risk of attachment of the goods shall pass to the purchaser/orderer upon the delivery of the goods to a forwarder or carrier and in any case no later than at the time the goods leave the warehouse or the supplying works. We shall only procure insurance cover if so instructed by the purchaser/orderer.
  9. Taking delivery
    1. The purchaser/orderer shall take delivery of all delivered goods and products, even if they exhibit minor non-conformances.
    2. We may make partial deliveries in a reasonable scope. The delivery of higher or lower quantities than agreed shall be permitted provided the excess or shortfall is within the range customary in the industry.
  10. Warranty / liability / defect of quality
    1. The goods shall be deemed to be in conformity with the contract if at the time of the passage of the risk they do not or only slightly deviate from the agreed quality or specification. Conformity with the contract and absence of defects of our goods shall only be defined by the express agreements on quality and quantity of the ordered goods. We shall only be liable for a specific purpose or a specific fitness if this has been expressly agreed in writing; in all other respects, all risk of fitness and use shall exclusively be borne by the purchaser/orderer. We shall not be liable for a deterioration or loss or improper handling of the goods after the passage of the risk. The contents of the agreed specification and any expressly agreed purpose shall not give rise to any warranty; no warranty shall be valid unless agreed in writing.
    2. The purchaser/orderer shall be obliged to inspect the goods immediately. If purchaser/orderer fails to do so, we shall be released from any and all liability. The purchaser/orderer shall properly perform its obligations to inspect the goods and if appropriate make a complaint in respect of defects as required by sec. 377 HGB. If the purchaser/orderer fails to do so, we shall be released from any and all liability. Delivery shall be deemed accepted unless we receive a written complaint in respect of apparent defects within 7 (seven) days after the goods have arrived at their destination.
    3. Complaints because of hidden defects must be lodged in writing promptly upon their discovery, and in any case before the expiry of the statutory or agreed limitation period.
    4. We shall first be granted an opportunity to rectify a defect within a reasonable period. At our option we shall rectify the defect, make a new delivery or perform a new service free of charge for any (partial) goods / services that exhibit a defect of quality within the meaning of sec. 434 BGB and/or sec. 633 BGB within the limitation period, irrespective of their operating life. The above shall only apply if the cause of the defect or the defect itself already existed at the time of the passage of the risk. If the defect is insignificant, the purchaser/orderer shall only be entitled to demand a reduction in the price.
    5. If a complaint because of a defect turns out to have been unjustified, we may demand compensation from the purchaser/orderer for any expenses we may have incurred in this respect.
    6. In case of a defect of title we shall be entitled to subsequent performance to rectify the defect of title within a reasonable period.
    7. We may refuse the rectification of a defect if it is only possible at disproportionate costs. As a rule costs are disproportionate if the direct costs of subsequent performance including the expenses required for that purpose exceed the equivalent of 150% of the final invoice amount (net of value added tax) of the goods affected. Not included shall be costs related to the fitting and removal of the defective item as well as the purchaser's costs of rectifying the defect itself if this is done although the legal conditions for this have not been met. We shall not bear any expenses resulting from the fact that the sold goods have been transported to another place than the agreed place unless this is in line with their contractual use.
    8. After an agreed acceptance of the goods has been performed by the purchaser/orderer, any subsequent complaint in respect of defects that could have been identified by the agreed type of acceptance shall be excluded.
    9. In case of any complaints, the purchaser/orderer shall promptly offer us an opportunity to verify the matter; upon request, the rejected goods or a sample thereof shall be made available to us at our expenses. If a complaint proves unjustified, we reserve the right to charge the purchaser for the freight and the verification effort.
    10. Any and all recourse claims by the purchaser/orderer according to sec. 478 BGB against us shall be limited to the statutory extent of the claims asserted by third parties against the purchaser/orderer because of defects and shall only be possible if the purchaser/orderer has complied with its obligation owed us to make a complaint in respect of a defect immediately on receipt of the goods according to sec. 377 of the German Commercial Code (HGB).
  11. Other claims for damages
    1. The purchaser/orderer shall not have any right to demand damages or any compensation for expenses from us unless we are liable according to statutory provisions such as:
      - according to the German Product Liability Act,
      - in case of intent or gross negligence,
      - in case of any injury to life, body or health, or
      - in case of a violation of material contractual obligations.
      Any claim for damages because of a violation of material contractual obligations shall, however, be limited to the typical loss or damage that may reasonably be expected, unless we have acted with intent or gross negligence or a liability exists because of an injury to life, body or health. The above provisions do not imply a change in the burden of proof to the detriment of the purchaser/orderer.
    2. Any claims for damages the purchaser/orderer may have under this section shall become statute barred upon the expiry of the limitation period applicable to claims because of defects of quality.
    3. In all other respects, the legal provisions of the statute of limitations shall apply.
  12. Toll work
    1. Any specifications concerning the execution of an order accepted by us may only be changed by the purchaser/orderer with our express consent. As a consequence of the engineering conditions, no binding promises on the result of toll work can be made.
    2. Upon our request, the purchaser/orderer shall indemnify us for and against any and all claims arising out of or in connection with the execution of its order if as a result of our compliance with its wishes as regards certain qualities or other properties, any domestic or foreign proprietary rights of third parties, including but not limited to copyright, patent rights, trademark rights or design protection rights, are infringed because of our use of any documents made available to us. Unless agreed differently, the items for toll work shall be delivered to us free of all charges.
    3. The purchaser/orderer shall bear the risk and costs of a loss or the deterioration of the feed material and/or the processed material during the transport to us and during the transport back.
    4. Any specifications by the purchaser/orderer concerning a minimum output quantity shall only be deemed agreed if we have issued an express written statement containing the accepted feed material quantity, the minimum output quantity and the surcharge, if applicable, to be agreed in such cases. Since losses must be expected in any engineering process, any and all claims for damages or price reduction for such losses shall be excluded. Changes in the data and particulars provided by the purchaser/orderer and accepted by us shall only be taken into account, if they are mutually agreed in writing. Any costs resulting from such changes shall be for the account of the purchaser/orderer. Any and all liability for the change and any and all warranty claims and claims for damages resulting from a change shall be excluded.
    5. The toll work items delivered to us by the purchaser/orderer shall be accompanied by an order that must contain all data and particulars required for the processing of the order; this order shall be delivered by the purchaser/orderer and acknowledged by us. If the data or particulars in the order are incomplete or their implementation is impossible with our facilities or equipment, we may reject the execution of the order or may perform rework at our discretion and at the purchaser's/orderer's risk without incurring any liability for the result of such rework. In such case, any and all claims for damages and/or warranty claims shall be excluded.
    6. Under our warranty for toll work, we shall at our option rework a defective toll work item or grant a credit note for an amount up to the price agreed under the specific order if a toll work item proves to be defective and if it can be demonstrated beyond doubt that we are responsible for the defect and if the defect makes it impossible to use the respective item. If rework is impossible, we shall in such case perform the contractually agreed work free of charge on replacement material supplied by the customer. We shall not bear any costs for material and any consequential costs. If we perform a free rework in our works, we shall be allowed a reasonable period for the execution of the rework.
    7. If the purchaser/orderer should supply objectionable material or if the customer does not use the treated parts in a way that corresponds to their quality conditions, any and all warranty claims and claims for damages shall be excluded. We will not perform an incoming goods inspection of the material provided.
    8. The purchaser/orderer shall grant us a pledge of the feed material supplied for the processing and of the parts manufactured from such feed material upon its or their delivery. The pledges in our possession serve to secure any and all of our accounts receivable resulting from our business relations with the purchaser/orderer. After their due date and after we have sent a reminder for overdue accounts receivable, we may at any time sell the pledges provided we have notified the purchaser/orderer of our intention in advance.
  13. Collateral agreements, amendments and modifications
    1. No modifications of or amendments to these Standard Terms and Conditions of Sale and Delivery and no collateral agreements shall be valid unless made in writing. The same shall apply to the waiver of this written form requirement.
    2. There are no other written understandings or supplements apart from this contract.
    3. If the practical work or the technical implementation should show that the respective contract or these Standard Terms and Conditions of Sale and Delivery contain any gaps, both parties shall fill such gaps in a way that is appropriate and reasonable.
  14. Jurisdiction and applicable law
    1. Exclusive venue for any disputes arising directly or indirectly out of the contractual relationship shall be our registered office, hence Netphen-Deuz. If the matter in dispute has a value exceeding 5,000 euros, the venue shall be Siegen, hence the Siegel Local Court (Landgericht).
    2. Any and all legal relationships in connection with these understandings and agreements shall be governed by German law. The application of the UNConvention on Contracts for the International Sale of Goods (CISG) shall be excluded.
    3. Place of performance for deliveries and payments shall be our registered office, hence Netphen-Deuz.
  15. Severability
    Should any provision of these Standard Terms and Conditions of Sale and Delivery be invalid, this shall not affect the validity of the remaining provisions which shall continue to be in full force and effect. The invalid provision or invalid part of a provision shall be replaced by a corresponding understanding that comes as close as possible to the economic intent of the invalid provision or invalid part.

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