General Terms and Conditions

General Terms and Conditions of Sale

§ 1 General – Scope

(1) Our general terms and conditions of sale are valid exclusively; we shall not recognise any conditions of the customer that contradict or deviate from our terms and conditions, unless we have expressly given our written consent to their validity. Our conditions of sale also apply if, despite being made aware of contradictory conditions of the customer, we fulfil the delivery to the customer without reservation.

(2) All agreements made between us and the customer for the execution of this contract have been established in writing in this contract.

(3) Our terms and conditions of sale apply only to businesses as defined in Section 310 para. 1 of the German Civil Code.

§ 2 Offer – Offer documents

(1) If the order qualifies as an offer according to Section 145 of the German Civil Code, we can accept it within 2 weeks of receipt.

(2) We reserve all proprietary rights and copyrights to illustrations, drawings, calculations, and other documentation. This also applies to written documents that are identified as “confidential”. Any transfer to third parties shall require our express prior written consent.

(3) Our offers are not binding unless expressly stated.

§ 3 Prices – Terms of payment

(1) Unless otherwise stated in the order confirmation, our prices are valid “ex works” Daimlerring, Bünde.

(2) Our prices exclude VAT; it shall be shown separately on the invoice at the statutory rate applicable on the date of invoicing.

(3) Deduction of a cash discount shall require a special written agreement.

(4) Unless otherwise stated on the order confirmation, the purchase price shall be payable net (without deductions) within 30 days net from the date of invoice. The statutory provisions governing the consequences of late payment shall apply.

(5) The customer shall not be entitled to offset rights, unless their counterclaims are legally established, undisputed, or acknowledged by us. In addition, they shall only be entitled to exercise retention rights if their counterclaim arises from the same contractual agreement.

(6) Payments may be made with discharging effect only to Dresdner Factoring AG, 01099 Dresden, Glacisstrasse 2, as a service partner of the invoice issuer, as we have sold and assigned our claims as part of factoring to Dresdner Factoring AG.

(7) We are entitled to assign the claims from our business relationship.

(8) In case of default with more than one obligation, the complete claim against the buyer shall be due immediately.

§ 4 Delivery time

(1) The period of delivery determined by us shall only commence after all technical issues have been resolved.

(2) Compliance with our delivery obligation shall be further subject to timely and orderly completion of the obligations of the customer. We reserve the right to object to non-fulfilment of the contract. In particular, the delivery obligation may be made subject to an advance payment to be made by the customer.

(3) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall have the right to demand compensation for the damage caused to us through such action, including additional expenses incurred. Any other claim shall remain unaffected.

(4) Insofar as the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the item purchased shall pass to the customer if they are in default of acceptance or payment.

(5) We shall be liable to the legal provisions, insofar as the underlying sales contract is a fixed transaction within the meaning of Section 286 para. 2 no. 4 of the German Civil Code or of Section 376 of the German Commercial Code. We shall also be liable in accordance with the statutory provisions, provided that as a result of a delay in delivery for which we are responsible, the customer is entitled to claim that their interest in the further performance of the contract has ceased to exist.

(6) Furthermore, we shall be liable in accordance with the statutory provisions if the delay in delivery is based on an intentional or grossly negligent breach of the contract for which we are responsible; a fault of our representatives or vicarious agents is attributable to us.

(7) Insofar as the delay in delivery is not due to a deliberate breach of contractual obligations for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.

(8) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.

(9) In addition, we shall be liable in the event of default in delivery for each completed week of delay in the context of a flat-rate compensation for delay in the amount of 3% of the delivery value, but no more than 15% of the delivery value.

(10) Further legal rights and rights of the customer shall remain unaffected.

§ 5 Transfer of risk – Packaging costs

(1) Unless otherwise stated in the order confirmation, delivery “ex works” (Incoterms 2010) Warehouse Daimlerring, Bünde, is agreed upon.

(2) Separate agreements shall apply to the return of packages.

(3) If the customer wishes, we shall cover the delivery with transport insurance; the costs incurred by this shall be borne by the customer.

§ 6 Liability for defects

(1) Claims of the customer for defects shall presuppose that they have duly fulfilled their duties of inspection and complaint pursuant to Section 377 of the German Commercial Code.

(2) Insofar as there is a defect to the purchased item, we are entitled, at our discretion,
to remedy the defect in the form of remedial action or with the delivery of a
new, defect-free item. The provision of subsequent performance, regardless of its scope, shall not constitute an acknowledgement of the defect alleged by the customer. In the case of remedial action, we shall be obligated to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour, and material costs, unless these increase as a result of the goods being transported to a place other than the place of performance.

(3) Should the supplementary performance fail, the customer shall be entitled, at their discretion, to demand rescission or reduction.

(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intentional or gross negligence, including intentional or gross negligence on the part of our representatives or vicarious agents.

(5) Unless we are charged with intentional breach of contractual obligations, the liability for damages shall be limited to foreseeable, typically occurring damage.

(6) We shall be liable in accordance with statutory provisions, insofar as we culpably violate an essential contractual obligation; in this case, however, the liability for damages shall be limited to foreseeable, typically occurring damage. Insofar as the customer is entitled to compensation for the damage instead of the service, our liability shall also be limited within the scope of para. (3) to compensation for foreseeable, typically occurring damage.

(7) Liability for culpable injury to life, body, or health shall remain unaffected; this shall also apply to the mandatory liability under the Product Liability Act.

(8) Unless otherwise stipulated above, liability is excluded, in particular for indirect damages and lost profits.

(9) The limitation period for claims for defects is 12 months, calculated from the transfer of risk.

(10) The limitation period in the case of a delivery recourse according to Sections 478 and 479 of the German Civil Code shall remain unaffected; this is five years, calculated from the delivery of the defective item.

§ 7 Retention of title

(1) The goods shall remain the property of the seller until full payment of the purchase price. The buyer shall be authorised to process and resell the goods within the scope of their normal business. In this case, the buyer shall assign resulting claims or substitutes to the seller with regard to goods that are still the property of the seller due to lack of payment. We shall reserve ownership of the purchased item until receipt of all payments from the delivery contract. In the case of breach of contractual obligations by the customer, in particular in the case of default of payment, we shall be entitled to reclaim the purchased item. Our reclaiming of the purchased item shall constitute withdrawal from the contract. After the goods have been reclaimed, we shall be entitled to use them, the proceeds of the recovery shall be credited against the customer’s liabilities, with a deduction of reasonable exploitation costs.

(2) The customer shall be obligated to treat the purchased goods with care; in particular, they shall be obligated to insure these at their own expense against damage caused by fire, water, and theft up to the value of a new item. Should maintenance and inspection work be required, the customer must perform this in a timely manner at their own expense.

(3) In the case of seizure or other interventions by third parties, the customer must notify us immediately in writing so that we can file an action in accordance with Section 771 of the Code of Civil Procedure. Insofar as the third party is not in a position to reimburse us for the course and out-of-court costs of a claim in accordance with Section 771 of the Code of Civil Procedure the customer shall be liable for the loss incurred by us.

(4) The customer shall be entitled to resell the purchased item in the ordinary course of business; however, they shall hereby assign us to all claims in the amount of the final invoice amount (including VAT) of our claim arising from the resale against their customers or third parties, irrespective of whether the purchased goods were resold without or after processing. The customer shall remain authorised to collect this claim even after transfer. Our authority to collect the claim shall remain unaffected. However, we are not permitted to collect the claim for as long as the customer meets their payment obligations from the proceeds received, does not default on payment, and, in particular, no petition for the opening of settlement or insolvency proceedings or cessation of payments exists. However if this is the case, we may demand that the customer notifies us of the transferred claims and their debtors, provide all information necessary for collection, hand over the associated documents and notify the debtors (third parties) of the transfer.

(5) The processing or transformation of the purchased item by the customer shall always be carried out on our behalf. Should the purchased item be processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing.
Incidentally, the same shall apply to the item resulting from processing as to the purchased item delivered under reservation.

(6) Should the purchased item be inseparably mixed, blended, or combined with other items not belonging to us, we shall acquire co-ownership of the new item in proportion of the value of the purchased item (final invoice amount, including VAT) to the other blended items at the time of mixing, blending, or combination. Should the mixing, blending, or combination take place in such a way that the customer’s item is to be regarded as the main item, it shall be considered agreed that the customer assigns proportional co-ownership to us. The customer must maintain the resulting sole ownership or co-ownership for us.

(7) The customer shall also assign to us the claims to secure our claims against them, which accrue by connecting the purchased object with a property against a third party. We shall be obligated to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be our responsibility.

§ 8 Total liability

(1) Further liability for damages as provided for in Section 6 shall be excluded – regardless of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from negligence on conclusion of the contract, due to other breaches of duty or due to tort claims for compensation for property damage in accordance with Section 823 of the German Civil Code.

(2) The limitation according to para. (1) shall also apply insofar as the customer, instead of claiming compensation for the damage, demands compensation for useless expenditures instead of performance.

(3) Insofar as the liability for damages against us is excluded or limited, this shall also apply with regard to the personal liability for damages of our staff, employees, workers, representatives, and vicarious agents.

(4) Conditions of purchase of our customers shall apply only to the extent that they do not contradict our terms of delivery and payment.

§ 9 Jurisdiction – Place of performance

(1) Jurisdiction is the seat of the invoice issuer; however, we shall be entitled to sue the customer at their local court.

(2) The law of the Federal Republic of Germany shall apply; the validity of the UN sales law is excluded.

(3) Unless otherwise stated in the order confirmation, our place of business is the place of performance.

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