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General conditions of sale and delivery
1. These General Conditions of Sale and Delivery (GCSD) apply to all of our business relationships, contracts, deliveries and other services, including any advisory services or the like. These GCSD form part of all contracts concluded with our customers for the deliveries or services provided by us. They also apply to all future deliveries, services or quotations provided by us, even when not agreed separately on another occasion. The GCSD are applicable only if the customer is a business owner (§ 14 BGB [German civil code]), a legal entity under public law or a special fund under public law.
2. The terms and conditions of our customers or third parties have no validity, even if we do not object to the validity thereof separately in an individual case. Even if we make reference to a letter containing or referring to the terms and conditions of the customer or a third party, this does not suggest any agreement with the validity of those terms and conditions. Any conditions of purchase and/or payment which are conflicting or deviate from our conditions expressly do not apply unless expressly recognised by us in writing in the individual case.
II. Quotations and transactions
1. Our quotations are subject to change without notice.
2. The information, drawings, illustrations, technical data, weight measurements and service descriptions contained in brochures, catalogues, newsletters, advertisements, price lists or in the documents associated with the quotation are non-binding unless expressly designated by us as binding in the order acknowledgement.
1. Our prices are quoted ex stock net cash plus VAT, or ex works plus freight and VAT, unless otherwise expressly agreed. Prices quoted do not include packaging costs.
2. Should freight costs or charges such as taxes, duties, fees and the like be introduced or increased after conclusion of the contract, we shall be entitled to increase the purchase price accordingly if this introduction or increase has occurred more than four months after conclusion of the contract.
IV. Payment and accounting
1. Payments fall due immediately and without deduction upon receipt of invoice unless different payment terms are quoted on our invoices.
2. In the event of default of payment, our claim against merchants for commercial interest from the date of maturity (§ 353 HGB [German commercial code]) remains unaffected. From the time of default we shall be entitled to calculate the statutory default interest. We reserve the right to assert further damage caused by a default.
3. The customer shall be entitled to set-off rights or rights of retention only insofar as his claim is legally established or undisputed. In the event of defects in the delivery, the adverse rights of the customer remain unaffected.
4. If we have granted a term of payment, we shall be entitled to make the outstanding amount due for immediate payment if the payment conditions are not observed or we become aware of circumstances which to our dutiful, commercial knowledge deem it appropriate to reduce the creditworthiness of the customer. We shall optionally also be entitled, notwithstanding further statutory rights, to perform outstanding deliveries only in return for payment in advance and/or to demand appropriate securities.
V. Delivery, dispatch, delivery deadlines and dates, transfer of risk
1. Deliveries are performed ex stock or ex works (place of performance). Upon request and at the cost of the customer, the goods shall be dispatched to another place of destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the mode of dispatch (in particular transport company, dispatch route, packaging).
2. All deadlines and dates for deliveries and services which we have announced shall always be subject to change unless a fixed deadline or fixed date is expressly promised or agreed. Upon agreement of dispatch, the delivery deadlines and delivery dates relate to the time of handover to the forwarding agent, freight carrier or third parties otherwise contracted to carry out transportation. The deadlines and dates shall also be deemed to be met if notification is given that the goods are ready for dispatch but cannot be shipped on time through no fault of our own or on the part of the distributor.
3. The risk is transferred to the customer no later than at the time of handover of the delivery item (commencement of loading procedure is definitive) to the forwarding agent, freight carrier or third parties otherwise designated to perform shipment thereof. This shall also apply if partial deliveries are performed or we have taken over responsibility for other services (e.g. dispatch or installation). Should the dispatch or handover be delayed owing to circumstances brought about by the customer, the risk shall be transferred to the customer from the day when the delivery item is ready for dispatch and the customer has been notified of this by us.
4. Delivery deadlines which have been promised shall be extended by the period of time by which the customer is behind schedule with respect to his obligations to us.
5. For transactions requiring on-going delivery, call-off orders and classification for approximately identical monthly quantities are to be assigned to us. If the contractual quantity is exceeded by individual call-off orders from the customer, we shall not be obliged to deliver the surplus quantity.
6. Unless otherwise expressly agreed, the goods shall be delivered in disposable packaging. Where particular packaging has been agreed upon, a standard surcharge shall be applied. For bundled goods, weighing shall be performed on a gross for net basis. The customer is to dispose of the packaging material.
7. If we are to act as forwarding agent, the German Freight Forwarders' Standard Terms and Conditions shall apply. Goods notified as being ready for dispatch are to be called immediately. Should this not occur, we shall be entitled upon appropriate notification to the customer to ship the goods at the customer's own cost and risk or to store them as we deem appropriate and to charge for them immediately.
8. As a result of measures arising from industrial disputes, in particular strikes and lockouts, and in the case of unforeseeable extraordinary events which we could not anticipate in spite of the due care and attention given according to the circumstances of the individual case we shall be entitled to postpone the delivery for the period of time caused by the impediment and for an appropriate lead time, or by reason of the unfulfilled part to withdraw from the contract completely or to withdraw partially therefrom if the customer deems a partial delivery to be reasonable. In this instance, the customer shall be able to demand a declaration from us as to whether we wish to withdraw or deliver within an appropriate period of time. Should we fail to provide a declaration in response to this demand, the customer shall also be able to withdraw.
VI. Reservation of title
1. We shall reserve the right of ownership in respect of the goods sold until such time as all of our current and future claims arising from the sales agreement and from a continuous business relationship (secured debts) have been paid in full.
2. The goods subject to reservation of title shall neither be pledged to third parties nor transferred as security prior to complete payment of the secured debts. The customer is to notify us in writing immediately regarding any access, and the extent thereof, by third parties to the goods in our ownership.
3. Should the achievable value of the securities exceed our claims by more than 10%, we shall release securities at our discretion upon request by the customer.
4. Should the customer's conduct be deemed contrary to the contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the surrender of the goods on the basis of the reservation of title. The demand for surrender does not include at the same time the declaration of withdrawal; in fact we shall be entitled merely to demand the surrender of the goods and to reserve the right to withdraw. Should the customer not pay the purchase price due, we shall only be allowed to assert these rights if we have already set the customer an appropriate deadline for payment but to no avail or if such setting of a deadline is superfluous in accordance with the statutory provisions.
5. The customer shall be authorised to continue to sell and/or process the goods subject to reservation of title within the normal course of business. In this case, the following provisions shall also apply.
a) The reservation of title extends to the products, which result from the processing, mixing or combination of our goods, at the full value thereof, wherein we are deemed to be manufacturer. Should the reservation of title of third parties be retained when the products are processed, mixed or combined with third party goods, we shall acquire joint ownership in relation to the invoice values of the processed, mixed or combined goods. For the remainder, the same shall apply to the resulting product as to the goods delivered under reservation of title.
b) The claims against third parties arising from the resale of the goods or product shall be assigned to us as security by the customer in total or at the level of our possible joint ownership share pursuant to the above paragraph. We shall accept the assignment. The customer's obligations stated in para. 2 shall also apply in consideration of the assigned claims.
c) The customer shall remain authorised together with us to collect the debt. We undertake not to collect the debt as long as the customer meets his payment obligations to us, does not fall behind schedule with payments, no application is made to institute insolvency proceedings and there is no other defect in performance on the part of the customer. However, should this be the case we shall be able to demand that the customer notifies us of the assigned claims and of his debtors, provides all details required for collection, distributes the associated documents and notifies the debtors (third parties) of the assignment.
VII. Notification of defects and warranty
1. The period of warranty runs for one year from the time of delivery or, where official acceptance is required, from the time of official acceptance.
2. The delivered items are to be examined carefully immediately upon delivery to the customer or to the third party designated by him. They are deemed to be approved if we have not received in writing, by fax or e-mail a written notification of defects regarding obvious defects or other defects, which became apparent from an immediate careful examination, within seven working days after delivery of the delivery item or otherwise within seven working days after discovery of the defect or any earlier point in time, in which the customer became aware of the defect in the course of normal use of the delivery item or upon closer examination. At our request, the rejected delivery item is to be returned to us freight paid. In the event that the notification of defects is justified, we shall refund the cost of the most inexpensive dispatch route; this shall not apply where the costs increase because the delivery item is at a location other than the location of intended usage.