1.         FORMATION OF A CONTRACT

Unless an offer of the Seller is explicitly referred to as “binding”, offers shall be non-binding. A purchase order by the Buyer shall be deemed an offer; the contract shall be formed by an order confirmation of the Seller or by dispatch of the goods. In case of a firm offer of the Seller, the contract shall be concluded by the purchase order of the Buyer.

2.         TRANSFER OF RISK

The risk of accidental damage or accidental loss of the goods shall be transferred to the Seller upon the Seller’s notification that the goods are available for collection. If the goods are dispatched at the Buyer’s request, the risk shall be transferred to the Buyer when the goods are handed over to the first transporting entity.

3.         DELIVERY

3.1.     Should the Buyer fail to collect the goods after being notified by the Seller that the goods are available for collection, or if the Buyer postpones a delivery date, the Seller shall be entitled to temporarily store the goods in a third party warehouse at the Buyer’s cost, or to charge storage costs. If the Buyer is in default with regard to acceptance of the goods, the Seller shall be entitled to withdraw from the contract.

3.2.     Each delivery shall be considered to be a separate contract and any default in delivery or any defect with regard to one or more than one delivery shall not affect the deliveries still remaining, but not yet performed under the contract unless otherwise provided in these sales conditions.

4.         PAYMENT TERMS, ASSIGNMENT

4.1 Unless otherwise agreed, payments shall be due immediately and without deduction. In the absence of any deviating provision, the payment shall be made into the bank account specified in the invoice. Commercial agents of the Seller’s may not collect the amounts on the invoices unless they were given a separate power of attorney to do so.

4.2.     The Seller is entitled to assign claims against the Buyer.

5.         RESERVATION OF TITLE AND OWNERSHIP

5.1.     The Seller reserves title to and ownership of the delivered goods until payment in full for all claims arising from the business relationship with the Buyer has been received. If the delivery is effected outside Germany, the Seller reserves title to and ownership of the goods until payment of the relevant goods.

5.2.     The Buyer may convert, resell and rework the said goods in the course of normal commercial operations.

5.3.     If the goods are delivered within Germany, in case of conversion of the goods, the property rights of which have been reserved, ownership of the new product produced from the reserved goods is hereby transferred in advance to the Seller until full satisfaction of the secured claims whereupon ownership shall automatically fall back to the Buyer. When conversion also includes other products not belonging to the Buyer, the Seller shall, under the rule above, obtain joint ownership of the new product to the extent of the value of the goods of which ownership is reserved.

5.4.     If the Buyer resells the goods acquired, but not yet paid for in full, whether as converted products or not, the Buyer hereby assigns to the Seller such receivables and money as security for the Seller, in each case up to the amount of the value of the goods which are subject to the reservation of title and ownership. On the Seller’s request, the Buyer must notify its own buyer of this assignment. The Seller will disclose the assignment and collect receivables only if the Buyer is in default of payment.

6.         DELAYED PAYMENT

If the Buyer is in default of payments, the Seller may charge interest at the rate of nine (9) percentage points above the base interest rate of the ECB p.a. The Seller shall furthermore be entitled in such case to declare immediately due all claims against the Buyer not yet due.

7.         CLAIMS BASED ON DEFECTS

7.1.      In the event of any transport damage, the Buyer shall notify the Seller or the carrier on receipt of the goods immediately, at the latest within three (3) days.

7.2.      Claims based on defects require that the Buyer has complied with its duty to examine and object to defects. Objections to obvious defects must be raised towards the Seller without delay, at the latest within ten (10) days. The same deadline shall apply to objections to latent defects, calculated as of the time of discovery.

7.3.      All claims and notices in relation to these sales conditions must be asserted or made in writing and delivered by mail, telefax or electronic means.

7.4.      In the event of defects, the Seller shall be entitled at its choice to deliver new goods free of defects or to remedy the defect in the delivered goods.

7.5.      When asserting a claim, the Buyer must clearly identify the goods and detail the facts on which its claim is based. Until any dispute relating to a claim has been resolved, the Buyer shall take care of and carefully warehouse and insure the goods. Should the Buyer’s claims be accepted, the Seller shall reimburse the Buyer for its incurred warehouse and insurance costs. Should there be any indications of damage in transit, the Buyer shall also notify the carrier.

7.6.     If the Buyer has asserted claims as required above and the parties are unable to reach agreement on settlement of the claims, the dispute shall be resolved in accordance with Clause 13 below.

7.7.      Claims based on defects shall become time-barred within one (1) year of delivery. This shall not apply in the event of a defect caused intentionally or grossly negligently or in the event of claims based on culpable injury to life, limb or health. With regard to compensation claims due to defects, the limitation of liability under Clause 8 shall apply.

8.         LIMITATION OF LIABILITY

8.1.     The Seller shall be liable under the statutory regulations in the event of intent, gross negligence, any culpable injury to life, limb or health, in the event of assumption of a guarantee or any other no-fault liability and in the event of liability under the German Product Liability Act (Produkthaftungsgesetz).

8.2.     In the event of slightly negligent breach of major contractual duties, thus such duties the compliance with which the Buyer relies on and may rely on, as a rule, for fulfilment of the purpose of the contract, the Seller’s liability shall be limited to the foreseeable damage typical of this type of contract.

8.3.     The above provisions shall also apply if the damage is caused by a corporate body or vicarious agent of the Seller.

8.4.     Any further liability shall be excluded.

8.5.     To the extent liability is excluded or limited pursuant to the provisions above, the same shall apply to the personal liability of the corporate bodies or vicarious agents of the Seller.

9.         GROUNDS FOR DISCHARGE FROM LIABILITY (FORCE MAJEURE)

9.1.     The events listed below shall be considered grounds for discharge from liability if they occur after conclusion of the contract – or if they occurred before that time, if their effects were not clearly foreseeable before the conclusion of the contract, and they prevent, hinder or delay the production in which the Buyer (or, if the Buyer is a wholesale dealer, its customer provided it is named in the contract) intends to use the goods; furthermore, if they prevent, hinder or delay the Buyer’s acceptance of the goods or the Seller’s production or the agreed type of delivery, viz.:

(i) war; war risk; insurrection; requisition; embargo; calling up of personnel for military service; currency restrictions; export or import prohibitions or restrictions; fire; flood; climate-related disasters; obstruction of railways; environmental catastrophe; or other events beyond the control of any of the parties;

(ii) restrictions in the use of power; shortage or rationing of oil supply affecting production and/or transportation; labour conflicts; social upheavals; general shortage of labour, transport and materials; water shortage; obstruction of seafaring through ice or other obstacles at the port of loading or the destination port; losses or delay at sea; non-delivery, faulty or delayed delivery by raw materials suppliers or by other suppliers of other commodities for industrial production, stoppage, interference or defects in production caused by data viruses or other similar kind of risks of data processing, data transfer and computer systems and any other circumstances the affected party was not able to prevent after having taken all reasonable measures to prevent the occurrence of such circumstances.

9.2.     The Buyer and the Seller may decide to suspend performance of this contract for the reasons stated above in Clause 9.1. (i) and (ii), neither party being responsible to the other party for any damage resulting from such suspension of performance.

9.3.     The Seller will inform all those concerned about events referred to in Clauses 9.1. (i) and (ii) above as soon as it obtains knowledge thereof. Upon receipt of such information, the Buyer shall inform the Seller of its possible decision to cancel the contract pursuant to Clause 9.4.

9.4.     In the event of suspension of performance of the contract for fewer than ten (10) consecutive days, deliveries shall be resumed as soon as possible with regard to the total contractually agreed delivery quantity. If such suspension continues for at least ten (10) consecutive days or more, without liability of either party the delivery or deliveries omitted during the period of suspension can be cancelled without replacement and subsequent deliveries shall be resumed thereafter according to contract.

9.5.     The party wishing to claim relief for the reasons stated in Clause 9.1 shall notify the other party in writing without delay of the occurrence of such incident and of cessation thereof and, as soon as practicable, shall inform the other party of the extent to which invoking the stated grounds necessitates suspension of performance.

 

10.       INCREASED COSTS

Should the total costs of production or transportation substantially increase after the conclusion of the contract due to considerable changes in the cost of energy and/or raw materials and/or exchange rates and/or freight/haulage rates, the Seller shall have the right to demand renegotiation of the prices in respect of quantities due for delivery and the Seller may also cancel the undelivered part of the agreed delivery quantity. The prices in the Seller’s order confirmation or firm offer shall apply to all shipments and/or deliveries made up to relevant notification by the Seller.

11.       NOTICES; SEVERABILITY

11.1.   Notifications to the Seller must be made in writing by mail, fax or electronic means to the address, fax or telephone number indicated in the firm offer or order confirmation under “sales information”. Each notification must specify the Seller and the reference number indicated as “our reference” on the firm offer, order confirmation or invoice.

11.2.   In case any of the provisions of these General Sales Conditions is invalid in whole or in part, the validity of the remaining provisions ( or parts thereof) shall not be affected thereby.

12.       APPLICABLE LAW

This contract and the legal relations between the Buyer and the Seller shall be governed by the laws of the Federal Republic of Germany excluding the CISG.

13.       DISPUTES

The courts competent for the Seller’s registered office in Düren shall have exclusive jurisdiction for all disputes between the parties arising out of or in connection with the purchase agreements or these General Sales Conditions if the Buyer is a businessman or does not have a general venue in Germany.

 

 

19 November 2015