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General terms and conditions






I. General information



1. The deliveries, performances and offers of the supplier shall be exclusively carried out in accordance with these general terms and conditions. They shall thus also apply for all future business relations even if they were not expressly agreed upon once more. General terms and conditions of business of the ordering party that differ from or supplement them shall not become the subject matter of the content if the supplier did not expressly object to them.

2. All the agreements, which have been reached between the supplier and the ordering party for the purpose of executing this contract have been laid down in writing in this contract.

3. The supplier shall retain its proprietary rights and exploitation rights under copyright law to cost estimates, drawings and other documents without any limitations. They may only be made accessible to third parties once the supplier has provided its prior consent and shall be returned to the supplier upon demand.

4. The supplier’s offers are subject to change and non-binding.  Declarations of acceptance and complete orders require written confirmation by the supplier to be legally valid.

5. Drawings, illustrations, dimensions, weights and other performance data shall only be binding, if they have been expressly agreed upon in writing.

6. Separate agreements shall apply for the supplier's assembly performances.

 




II. Delivery



1. Delivery dates and delivery deadlines, which can be agreed upon with or without a binding effect, need to be made in writing.

2. The supplier is entitled to carry out part deliveries and partial performances at any time unless the part delivery or partial performance is not of interest for the purchaser.

3. The observance of the supplier’s delivery and performance obligations requires the supplier’s written confirmation of order, the timely   receipt of all the documents, permits and releases to be supplied by the ordering party, in particular of plans as well as the observance of the terms of payment agreed upon and other obligations by the ordering party.

4. The supplier shall not be responsible for delays in delivery or performance due to acts of God, which do not only temporarily make it more difficult or impossible for the supplier to carry out the delivery or the performance - in particular this includes strikes, lockouts, regulatory actions etc. and also if they arise at the premises of the supplier’s suppliers or their sub-suppliers. They entitle the supplier to prolong the term for the delivery or the performance by the duration of the disruption plus an appropriate preparation time. This shall also apply in the event that it is not supplied on time and correctly by its suppliers. The supplier shall provide notifications of likely delays as quickly as possible.

5. The date of loading or the date when the readiness to deliver is reported to the ordering party shall be deemed as the delivery date.

6. If the supplier is responsible for the non-observance of dates and deadlines that have been bindingly promised or defaults, the ordering party is entitled - if it shows probable cause that it suffered a loss as a result of this, to 0.5%, but a maximum total of 5% of the invoice value for each complete week for that part of the shipment, due to the default of which the system could not be put into useful operation.

7. Other claims of the ordering party due to the delay in delivery, which extend beyond item 4, shall be prohibited. This does not apply if the supplier is responsible for the default due to intent or gross negligence or if it is compulsorily liable due to injury to life, a bodily injury or an injury to health. In accordance with the statutory provisions the ordering party can only annul the contract if the delay of the delivery is the supplier's responsibility. The aforementioned ruling is not linked with an amendment of the burden of proof to the ordering party's disadvantage.

8. The ordering party is obliged at the supplier’s demand to declare within an appropriate deadline whether it will cancel the contract due to the delay of the delivery or insist upon the delivery.

9. In the event of a delay of delivery at the supplier’s request that extends beyond the delivery date contractually agreed upon by more than one month the ordering party can be invoiced a storage charge at the supplier's discretion for each month that commences. The parties to the contract are free to prove that the warehousing costs were higher or lower.

 




III. Prices and payment



1. All the prices are always, if nothing else is agreed upon, ex works excluding packaging, reloading and assembly plus the respective legal rate of turnover tax.

2. Price amendments are permissible if there is an interval of more than 4 months between the order date and the delivery date and the material and/or operating costs increase in this period.

3. If nothing else is agreed upon the supplier’s invoices shall be payable within 14 days of the invoice date without a deduction in cash or by means of a bank transfer free of charges to the supplier’s paying agent.

4. If the ordering party defaults on payment then the supplier is entitled to charge default interest of 8 % more than the respective minimum lending rate in accordance with Section 247 of the German Civil Code from the respective point in time onwards.

5. The purchaser is only entitled to retention or set-off if its counter-claims are deemed to be legally enforceable or incontestable.

6. If the ordering party cancels a contract without justification the supplier can immediately demand 20% of the sales price for costs incurred and lost profit irrespective of other claims for damages. The ordering party shall bear the burden of proving the loss was smaller.

7. If we become aware of circumstances, which call the creditworthiness of the client into question, in particular if a cheque is dishonoured, payments are ceased or paid late or other circumstances then we are entitled to accelerate maturity for the entire balance of debt, even if we have accepted cheques. In this case we shall also be entitled to demand prepayment or the provision of securities for follow-up orders.

 




IV. Reservation of title



1. The delivery items (conditional commodity) remain the supplier's property until all the demands, which the ordering party is entitled to now or in the future from the ordering party, due to any legal grounds, have been fulfilled.

2. The ordering party is prohibited from pledging or transfering by way of security for the time the reservation of title exists. Resale is only permitted if the reseller receives payment from its client or states the reservation that the title shall only be passed on to the client if it has fulfilled its payment obligations. The ordering party shall already assign us all its accounts receivables, which arise vis-à-vis its clients from the resale. The ordering party remains empowered to collect these accounts receivables even following the assignment. The supplier’s authorisation to collect the accounts receivable itself, shall remain unaffected by this, however the supplier undertakes not to collect these accounts receivables itself as long as the ordering party fulfils its payment commitments vis-à-vis the supplier in an orderly manner. However, the supplier can demand that the ordering party names the debtors of the accounts receivables assigned and informs these debtors of the assignment. 

3. In the event of pledges, confiscations and other dispositions or interventions by third parties the ordering party shall inform us immediately.

4. In the event of conduct on the part of the ordering party that is in breach of the contract, in particular in the event of a default in payment, the supplier is entitled to take the conditional commodity back or if necessary to demand the assignment of the ordering party's claims for the return of property vis-à-vis third parties following the expiry of an appropriate deadline set to the ordering party to fulfil the performance. The statutory provisions concerning the dispensability of the setting of a time limit shall remain unaffected by this.

5. The supplier undertakes to release the securities to which it is entitled at the client’s request if the value of all the securities that can be realised exceeds the value of the accounts receivables secured by more than 50 %.

 




V. Transfer of risk



1. The risk shall be transferred to the ordering party as soon as the shipment is handed over to the person performing the shipment or has left the seller’s plant or warehouse for the purpose of shipment. This also applies to part deliveries and partial performances and also in the event that the supplier has assumed the costs of shipment.

2. If the shipment is delayed at the ordering party’s request, then the risk shall be transferred to it upon the notification that the goods are ready for shipment.

 




VI. Warranty



1. The supplier shall carry out a subsequent improvement or provide a replacement delivery in accordance with its choice.

2. The ordering party can demand a reduction of the remuneration or the cancellation of the contract in accordance with its choice if the subsequent improvement or the replacement delivery is unsuccessful.

3. The goods shall be inspected in terms of whether they are free of defects and complete immediately following their receipt and the supplier shall be informed of concealed defects within a period of 2 weeks. If the ordering party fails to inspect the goods or provide notice of defects on time the goods that were delivered shall be deemed as having been approved unless the defect was not recognisable when the goods were inspected. The supplier shall also be immediately informed of defects that are discovered later otherwise the goods shall be deemed as having been approved in terms of these defects. Each notice of termination shall be made in writing and the defect that is found fault with must be precisely described. In other respects Section 377 of the German Commercial Code shall apply accordingly.

4. The ordering party shall grant the supplier necessary time and opportunity to carry out subsequent improvements and replacement deliveries, which are deemed necessary by the supplier, otherwise the supplier is exempted from liability for the resulting consequences. It is necessary the customer provides a precise description of the notice of defect to shorten the amount of time the supplier requires to rectify the defect. The ordering party only has the right to rectify the defect itself or to have it rectified by third parties or to demand compensation from the supplier for the necessary but not disproportionate expenditure in urgent cases when the industrial safety is at risk or to prevent disproportionately large cases of damage.

5. Natural wear and tear, inconsiderable deviations from the properties agreed upon, inconsiderable impairments of the usefulness as well as defects, which arise due to faulty or negligent treatment shall be excluded from the warranty in each case.

6. Warranty claims and claims for damages become statute-barred one year following the delivery of the goods. This shall not apply if the law stipulates longer periods in accordance with Section 438 I item no.2, Section 479 I and Section 634a paragraph 1 item no.2 of the German Civil Code.

 




VII. Other claims to damages



1. Except as provided in the aforementioned rulings the supplier shall not be liable – irrespective of the legal reason - for the slightly negligent violation of duties by the supplier, its statutory representatives or vicarious agents. In the event of slightly negligent violations of cardinal duties the supplier's liability shall be restricted in terms of the amount to the typical foreseeable damage. The supplier is not liable for violations of duties that are caused in a slightly negligent manner or for violations of the duty to insure that were caused in a slightly negligent manner.

2. The aforementioned exclusions from liability and liability restrictions shall not apply in cases of no-fault liability, in particular in accordance with the Product Liability Act, in the case of personal injuries and injuries to health or losses of life for which the supplier is responsible.

 




VIII. Place of performance and applicable law



1. The substantive law of the Federal Republic of Germany shall exclusively apply to the legal relations in conjunction with this contract. The UN Convention on contracts for the International Sale of Goods (CISG) shall not be applied.

2. If the ordering party is a businessman, a corporate body under public law or a special fund under public law the sole place of jurisdiction for disputes resulting from this contract shall be Dresden. The same applies if the ordering party does not have a general place of jurisdiction in Germany.

3. If individual provisions of this agreement between the supplier and the ordering party should be or become entirely or partially ineffective including the general terms and conditions or if there should be a loophole within them then this shall not affect the effectiveness of the remaining provisions.

 



March 2008


 
 
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