1. SCOPE

1.1
These Terms and Conditions of Sale shall apply to any (supply) framework contract (hereinafter “Contract”) and all individual contracts and/or orders under a Contract (hereinafter “Individual Contract”) with entrepreneurs, legal entities under public law and special funds under public law (hereinafter “Partner”).

1.2
Our deliveries and services shall be provided exclusively on the basis of the following terms and conditions.

1.3
Terms and conditions of the Partner which are not expressly recognized by us shall not be valid.

2. GENERAL PROVISIONS

2.1
The contracting parties shall immediately confirm verbal agreements in detail in writing.

2.2
Orders shall only become binding upon our order confirmation.

2.3
The information and illustrations contained in brochures and catalogs are approximate values customary in the industry unless we have expressly designated them as binding.

2.4
We shall also be entitled to terminate the contract without notice if there is good cause for doing so. Good cause shall be deemed to exist in particular if, after conclusion of the contract, it becomes apparent that our claims for payment under the contract are jeopardized by the partner’s inability to pay and the partner, despite being requested to do so, fails to provide credible assurance of its ability to pay within a reasonable period of time. Statutory rights of termination and withdrawal and the rights under Sections 8.4 and 12.3 shall remain unaffected.

2.5
Should individual parts of these Terms and Conditions of Sale be or become invalid, this shall not affect the validity of the remaining provisions.

3. LONG-TERM AND CALL-OFF CONTRACTS, PRICE ADJUSTMENT

3.1
Unlimited contracts and contracts with a term of more than two years may be terminated with three months’ notice.

3.2
If, in the case of long-term contracts (contracts with a term of more than 12 months and unlimited contracts), a significant change occurs in the cost of wages, materials or energy, each contracting party shall be entitled to demand an appropriate adjustment of the price taking these factors into account.

3.3
If a binding order quantity has not been agreed, we shall base our calculation on the non-binding order quantity (target quantity) expected by the partner for a specific period.

If the partner takes less than the target quantity, we are entitled to increase the unit price appropriately. If he takes more than the target quantity, we will reduce the unit price appropriately, provided that the partner has given notice of the additional requirement at least six months before delivery.

3.4
In the case of delivery contracts on call, binding quantities shall be communicated to us by call at least three months before the delivery date, unless otherwise agreed.

Additional costs caused by a delayed call-off or subsequent changes to the call-off with regard to time or quantity by our partner shall be borne by him; unless he is not responsible for the delay or subsequent change; in this case our calculation shall be decisive.

4. CONFIDENTIALITY

4.1 Each contracting party shall use all documents (including samples, models and data) and knowledge which it obtains from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same care as its own corresponding documents and knowledge if the other contracting party designates them as confidential or has an obvious interest in keeping them secret.

This obligation begins from the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.

4.2 The obligation shall not apply to documents and knowledge which are generally known or which were already known to the contracting party at the time of receipt without the contracting party being obliged to maintain secrecy, or which are subsequently transmitted by a third party entitled to pass them on, or which are developed by the receiving contracting party without exploitation of documents or knowledge of the other contracting party which are to be kept secret.

5. DRAWINGS AND DESCRIPTIONS

5.1
If one contracting party provides the other with drawings or technical documents concerning the goods to be delivered or their manufacture, these shall remain the property of the submitting contracting party.

6. SAMPLES AND MEANS OF PRODUCTION

6.1
Unless otherwise agreed, the manufacturing costs for samples and production equipment (tools, molds, templates, etc.) shall be invoiced separately from the goods to be delivered. This also applies to production equipment that must be replaced as a result of wear and tear.

6.2
The costs for maintenance and proper storage as well as the risk of damage to or destruction of the production equipment shall be borne by us.

6.3
If the Partner suspends or terminates the cooperation during the production period of the samples or means of production, all production costs incurred until then shall be borne by the Partner.

6.4
The means of production shall remain in our possession, even if the partner has paid for them, at least until the delivery contract has been settled. Accordingly, the Partner shall be entitled to demand surrender of the Means of Production if a mutually agreed settlement has been reached regarding the time of surrender and the Partner has fully complied with its contractual obligations.

6.5
We shall store the means of production free of charge for one year after the last delivery to our partner. Thereafter, we request our partner in writing to comment on further use within six weeks. Our duty of custody shall end if no comment is made or no new order is placed within these six weeks.

6.6
Customer-related means of production may only be used by us for subcontracting to third parties with the prior written consent of our partner.

7. PRICES

7.1
Our prices are in Euro excluding VAT, packaging, freight, postage and insurance.

8. TERMS OF PAYMENT

8.1
Unless otherwise agreed, all invoices shall be due for payment within 30 days of the invoice date.

8.2
If we have indisputably delivered partially defective goods, our partner shall nevertheless be obliged to make payment for the defect-free portion, unless the partial delivery is of no interest to him. In all other respects, the Partner may set off claims for reimbursement of costs for the removal of defects or completion of the work; it may set off other counterclaims only if they have been legally established, are ready for decision or are undisputed. The partner also has a right of retention or a right to refuse performance only within these limits.

8.3
In case of overdue payment, we shall be entitled to charge interest on arrears at the rate charged by the bank for current account overdrafts, but not less than 8 percentage points above the respective prime rate of the European Central Bank.

8.4
In the event of default in payment, we may, after written notice to the partner, suspend the performance of our obligations until receipt of the payments.

8.5
Bills of exchange and checks shall only be accepted by agreement and only on account of performance and provided that they are discountable. Discount charges are calculated from the day the invoice amount is due. A guarantee for timely presentation of the bill of exchange and check and for raising of bill protest is excluded.

9. DELIVERY

9.1
Unless otherwise agreed, we shall deliver “ex works”. Decisive for the compliance with the delivery date or the delivery period is the notification of readiness for dispatch or collection by us.

9.2
The delivery period shall commence with the dispatch of our order confirmation and shall be reasonably extended if the prerequisites of sec. 15.1 are present.

9.3
Partial deliveries are permissible to a reasonable extent. They will be invoiced separately.

9.4
Production-related excess or short deliveries are permissible within a tolerance of 10 percent of the total order quantity. According to their scope, this changes the total price.

10. SHIPPING AND TRANSFER OF RISK

10.1
Goods reported ready for dispatch shall be taken over by the Partner without delay. Otherwise, we shall be entitled, at our discretion, to dispatch them or to store them at the partner’s expense and risk.

10.2
In the absence of a special agreement, we shall choose the means of transport and the transport route.

10.3
The risk shall pass to the partner when the goods are handed over to the railroad, the forwarding agent or the carrier or when storage begins, but at the latest when the goods leave the factory or the warehouse, even if we have assumed responsibility for delivery.

11. DELAY IN DELIVERY

11.1
If we can foresee that the goods cannot be delivered within the delivery period, we shall notify the partner thereof without delay, inform it of the reasons for this and, if possible, state the expected delivery date.

11.2
If the delivery is delayed due to an event described in sec. 15.1 listed circumstance or by an act or omission of the Partner, then an extension of the delivery period appropriate to the circumstances shall be granted.

11.3
The partner shall only be entitled to withdraw from the contract if we are responsible for the non-observance of the delivery date and the partner has unsuccessfully granted us a reasonable period of grace.

12. RESERVATION OF OWNERSHIP

12.1
We retain title to the delivered goods until all claims arising from the business relationship with the partner have been satisfied.

12.2
The partner is entitled to sell these goods in the ordinary course of business as long as he meets his obligations from the business relationship with us in due time. However, he may neither pledge the reserved goods nor assign them as security. He is obliged to secure our rights in the credited resale of the reserved goods.

12.3
In the event of breaches of duty by the partner, in particular in the event of default in payment, we shall be entitled to withdraw from the contract and to take back the goods after the unsuccessful expiry of a reasonable deadline set for the partner to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The partner is obliged to hand over the data.

12.4
The partner hereby assigns to us by way of security all claims and rights arising from the sale or any leasing of goods to which we are entitled and which may have been granted to the partner. We hereby accept the assignment.

12.5
Any processing of the reserved goods shall always be carried out by the partner on our behalf. If the reserved goods are processed or inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the invoice value of the reserved goods to the other processed or mixed objects at the time of processing or mixing.

If our goods are combined or inseparably mixed with other movable items to form a single item and if the other item is to be regarded as the main item, the partner shall transfer co-ownership to us on a pro rata basis insofar as the main item belongs to him. The partner shall keep the property or co-property for us. In all other respects, the same shall apply to the item created by processing or combining or mixing as to the goods subject to retention of title.

12.6
The partner must inform us immediately of any enforcement measures by third parties against the goods subject to retention of title, against the claims assigned to us or against other securities, handing over the documents necessary for an intervention. This also applies to impairments of any other kind.

12.7
If the value of the existing securities exceeds the secured claims by more than 20 percent in total, we shall be obliged to release securities of our choice at the partner’s request.

13. SAFE

13.1
The quality of the goods shall be exclusively determined by the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples, etc. of our partner, the latter shall assume the risk of suitability for the intended use. Decisive for the contractual condition of the goods is the time of the transfer of risk according to sec. 10.3.

13.2
We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the partner or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the partner or third parties without our consent. The same applies to defects that only insignificantly reduce the value or the suitability of the goods.

13.3
Claims for material defects shall become statute-barred after 12 months. This shall not apply if longer periods are prescribed by law, in particular for defects in a building and for goods that were used for a building in accordance with their customary use and caused the defectiveness thereof. Sentence 1 shall also not apply to damages resulting from injury to life, body or health and in the event of intent or gross negligence or any other breach of material contractual obligations (i.e. obligations the fulfillment of which is a prerequisite for the proper performance of the contract and compliance with which the contractual partner regularly relies on and may rely on) of our legal representatives or executive employees.

13.4
If an acceptance of the goods or an initial sample inspection has been agreed, the notification of defects shall be excluded which the partner could have detected during careful acceptance or initial sample inspection.

13.5
We shall be given the opportunity to establish the defect complained of. Goods which are the subject of a complaint must be returned to us immediately on request; we shall bear the transport costs if the complaint is justified. If the partner does not comply with these obligations or makes changes to the goods already complained about without our consent, he shall lose any claims for material defects.

13.6
In the event of a justified notification of defects in due time, we shall, at our discretion, either repair the goods complained about or deliver a faultless replacement.

13.7
If we do not meet these obligations or do not meet them in accordance with the contract within a reasonable period of time, the partner may set us a final deadline in writing within which we must meet our obligations. After the unsuccessful expiry of this period, the Partner may demand a reduction of the price or withdraw from the contract. Reimbursement of costs is excluded insofar as the expenses increase because the goods have been taken to another location after our delivery, unless this corresponds to the intended use of the goods.

13.8
Statutory rights of recourse of the partner against us shall only exist insofar as the partner has not made any agreements with its customer which go beyond the statutory claims for defects. Furthermore, the scope of the right of recourse shall be governed by sec. 13.7 last sentence accordingly.

14. OTHER CLAIMS, LIABILITY

14.1
Unless otherwise stated below, any other and further claims of the Partner against us shall be excluded. This applies in particular to claims for damages for breach of duty arising from the contractual obligation and from tort. We are therefore not liable for damage that has not occurred to the delivered goods themselves. In particular, we are not liable for loss of profit or other financial losses of the partner.

14.2
The above limitations of liability shall not apply in the event of intent, gross negligence on the part of our legal representatives or executive employees, or culpable breach of material contractual obligations, i.e. obligations the fulfillment of which is essential to the proper performance of the contract and compliance with which the contractual partner regularly relies on and may rely on. In the event of culpable breach of material contractual obligations, we shall be liable – except in cases of intent or gross negligence on the part of our legal representatives or leased employees – only for reasonably foreseeable damage typical of the contract.

14.3
Furthermore, the limitation of liability shall not apply in cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods. It shall also not apply in the event of injury to life, limb or health and in the absence of warranted characteristics, if and to the extent that the purpose of the warranty was precisely to protect the partner against damage that did not occur to the delivered goods themselves.

14.4
Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.

14.5
The statutory provisions on the burden of proof shall remain unaffected.

15. HIGHER VIOLENCE

15.1
Force majeure, labor disputes, riots, official measures, failure of our suppliers to deliver and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the contracting party concerned is in default, unless it has caused the default intentionally or by gross negligence. The contracting parties are obliged to provide the necessary information without delay within the bounds of what is reasonable and to adjust their obligations to the changed circumstances in good faith.

16. PLACE OF PERFORMANCE, PLACE OF JURISDICTION AND APPLICABLE LAW

16.1
Unless otherwise stated in the order confirmation, our registered office shall be the place of performance.

16.2
Our registered office shall be the place of jurisdiction for all legal disputes, also in the context of a bill of exchange and check process. We shall also be entitled to take legal action at the partner’s registered office.

16.3
The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany.

The application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG – “Vienna Sales Convention”) is excluded.