General Terms and Conditions of Contracts, Delivery and Services of Conex Universal Limited in business transactions with companies May 2019
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1. Scope, general
1.1 These General Terms and Conditions of Contracts, Delivery and Services apply exclusively to companies i.e. natural persons or legal entities that purchase the goods or service for commercial or professional use.
1.2 The terms and conditions set forth below (General Terms and Conditions) apply exclusively to business relations with our customers, also with respect to information and advice. Where our General Terms and Conditions are implemented in business with a customer, they shall also apply to all further business relations between the customer and ourselves unless otherwise agreed.
Differing general terms and conditions of the buyer and/or ordering party - hereinafter referred to as “customers” - shall only apply if and to the extent that we expressly acknowledge them in writing; otherwise they shall be rejected. Our silence regarding such differing general terms and conditions shall not be deemed in particular to be acknowledgement or consent, and this shall also apply to future contracts.
Our General Terms and Conditions shall apply in place of any general terms and conditions of the customer, especially terms and conditions of purchase of the customer, even if, according to such terms and conditions of purchase, acceptance of an order is deemed to be the unconditional acknowledgement of the terms and conditions of purchase, or we deliver, after the customer has indicated the validity of its general terms and conditions of purchase, unless we have waived the validity of our own General Terms and Conditions vis-à-vis the customer. Exclusion of the customer’s general terms and conditions shall also apply if the customer’s general terms and conditions do not include a separate provision on individual regulatory points of our General Terms and Conditions. By accepting our order confirmation or the contractual service, the customer expressly acknowledges that it waives its legal objection derived from the terms and conditions of purchase that our General Terms and Conditions do not apply.
1.3 If framework contracts or other contracts have been concluded with our customers, these shall take precedence. They shall be supplemented there by these General Terms and Conditions unless more specific stipulations are agreed.
2. Information / Advice / Properties of the products and services / Cooperation of the customer
2.1 Information and explanations regarding our products and services provided by ourselves or our distributors shall be provided solely on the basis of our experience to date. They do not constitute any agreements on properties or guarantees whatsoever in relation to our products. Values specified in this context shall be deemed average values of our products.
2.2 Product specifications agreed with the customer conclusively determine the properties owed. Further properties of the delivery item or our service in question shall not be owed.
2.3. Any information about our products and services, especially information in our quotations and brochures and on the internet and the illustrations, drawings, measurement, property or performance characteristics contained therein or performance characteristics and other data, especially technical data or information on ingredients, shall be deemed approximate average values. Data of our products without tolerances too as included on our website or in our catalogues and/or brochures are subject to production-related deviations and changes which are customary in the trade and/or customary in the industry, especially due to further developments in production technology and related materials.
2.4 If we provide operating instructions, these shall be drawn up with the care customary in the industry but do not release our customers from the obligation to check the products carefully regarding their suitability for the purpose intended by the customers. The same applies to information on our part regarding import and/or approval regulations.
Unless otherwise agreed, the customer shall be obliged on its own responsibility in any case to check whether our products and/or services can be used for the purpose intended by the customer.
2.5 We only assume an obligation to provide advice on the basis of a separate consultancy agreement.
2.6 Reference to standards, similar regulations and technical information, descriptions and illustrations of the delivery item in quotations and brochures resp. on the internet and in our advertising and to analyses or description of physical properties provided shall only represent a property of our products when we have expressly declared the quality to be a “property of the product”. These are otherwise non-binding, general specifications of performance. This shall also apply to statements made by our employees unless otherwise agreed.
2.7 A no-fault liability (guarantee) shall only be deemed to have been assumed by us if we have designated a property and/or outcome of performance in writing as “guaranteed by law”.
2.8 We shall assume no liability for the usability and/or eligibility for registration and/or marketability of our products or services for the customer’s intended purpose other than liability prescribed by law unless we have expressly agreed otherwise with the customer. This shall not affect the stipulation in paragraph 11.
2.9 The customer shall be obliged to provide us with all information and data from its sphere required to perform in due time and in full free of charge as a material obligation to cooperate.
3. Specimens / Documents and data provided / Samples / Estimates of cost
3.1 Properties of specimens resp. samples shall only become an integral part of the contract if this was agreed. The customer is not authorised to exploit and pass on samples.
Where goods are sold by us to the customer based on a sample, deviations herefrom in the goods supplied shall be admissible and shall not give cause for complaints and claims against us, unless otherwise agreed, if they do not have a sustained impact on the normally intended use of the goods supplied and the goods supplied comply with any specifications agreed.
3.2 We shall retain all title and copyright to samples, illustrations, images, photos, drawings, data, estimates of cost and other documents about our products and services disclosed or provided to the customer. The customer undertakes not to make the samples, data, photos and/or documents specified in the above sentence available to third parties unless we give our consent. The customer shall return them to us immediately on request if an order based on them has not been placed with us. This shall also apply if entitlement to retain the above-mentioned items and/or data is not otherwise contractually stipulated for the benefit of the customer.
The stipulations in sentences 1 and 2 shall apply accordingly to the customer’s documents, drawings or data. We may, however, make them available to such third parties, whom we are allowed to instruct to make deliveries and / or provide services together with the customer under the contract or whom we use as vicarious agents or suppliers.
3.3 Our estimates of cost shall only be binding when they are expressly designated as binding and the performance included therein begins immediately, at the latest 14 calendar days after receipt of the estimate of cost at the customer, on a contractual basis.
4. Conclusion of contracts / Scope of delivery and service / Procurement risk and guarantee
4.1 Our quotations are subject to change unless they are expressly designated as binding or expressly contain binding commitments or their binding nature was otherwise expressly agreed. They are requests for purchase orders by customers and not a binding quotation on our part.
4.2 A contract is created - also in day-to-day business - only when we confirm the customer's purchase order by order confirmation in writing or text form (i.e. also by telefax or email). An order confirmation shall only apply subject to the proviso that payment arrears of the customer still outstanding are settled and that any credit assessment of the customer undertaken by us does not disclose any negative information from the credit reporting agency. Where delivery is made or a service provided within the period by which the customer is bound by the quotation, our order confirmation can be replaced by our delivery, whereby the date of shipment of the delivery shall be decisive.
4.3 In the event of call orders or acceptance delays caused by the customer, we shall have the right to procure the material for the entire order and to manufacture the total order quantity immediately resp. to stock up with the total order quantity. After the order is placed, change requests from the customer can, therefore, no longer be considered unless this has been agreed.
4.4 The customer must notify us in writing in due time prior to conclusion of the contract of any special requirements of our products. Such notification shall not, however, extend our contractual obligations and liability.
Unless otherwise expressly agreed, we shall only be obliged to supply the ordered products as goods which are marketable and eligible for approval in the European Union.
4.5 We shall only be obliged to deliver from our own stock (obligation to deliver from stock).
4.6 If there is a delay in acceptance of the products or in their shipment or the acceptance of our service is delayed for a reason for which the customer is responsible, we shall have the right, after the setting and expiry of a period of grace of 14 days, at our option to request immediate payment of the remuneration, or to rescind the contract or refuse performance and request damages in lieu of full performance. The period must be given in writing or text form. We do not have to refer again in this to our rights under this clause.
In the event of our requesting damages as stipulated above, the damages to be paid shall amount to 20 % of the net delivery price in the case of purchase contracts or 20 % of the agreed net remuneration in the case of service contracts. The right is reserved for the customer to prove substantially lower damage (more than 10 % lower). There is no connection between the reversal of the burden of proof and the foregoing stipulations.
4.7 If the shipment is delayed at the customer’s request or for reasons, for which the customer is responsible, we shall have the right to store the goods, beginning upon expiry of the reasonable period set in writing or text form in the notice that the goods are ready for shipment, at the customer’s risk of loss and deterioration of the goods, and to invoice the costs incurred for this at 0.5 % of the net invoice amount of the stored goods for each full week or part thereof. The stored goods shall only be insured at the customer’s specific request. This shall not affect the assertion of further rights. The right is reserved for the customer to prove that substantially lower costs (more than 10 % lower) have been incurred.
Furthermore, we shall have the right, after the foregoing period expires according to sentence 1 of para. 4.8, to dispose otherwise of the contractual goods, and to make a new delivery to the customer after a reasonable period (= original delivery period plus 7 calendar days scheduling period).
4.8 If an order or call for delivery is delayed by the customer, we shall have the right to postpone the delivery by the same period as the customer is behind schedule plus a scheduling period of 4 working days at the place of our registered office.
If a purchase on call is concluded, we must receive the customer’s individual calls, unless otherwise agreed, at least 6 weeks prior to the requested delivery date, unless a shorter call or delivery period was agreed. Unless agreed to the contrary, the customer shall be obliged to accept the purchased goods in full within one year of receipt of the order confirmation. If the calls are not made in due time, we shall have the right to remind the customer of the calls and their planning and to set a period of grace for making calls and planning of 14 days which must provide for acceptance within 4 weeks of receipt of our request. If the period expires without effect, we shall have the right to rescind the contract or to request damages in lieu of performance. In doing so, we do not have to refer again to the rights under this clause. Para. 4.8 (2) shall apply accordingly.
4.9 Unless otherwise expressly agreed in writing or text form or if we are subject to different mandatory legal provisions, we shall only be required to provide user information for our products and a product label in German or, at our option, in English.
4.10 We reserve the right to change the specifications of the goods in so far as this is necessary to comply with legal requirements provided that such change does not cause any deterioration in terms of quality and usability for the usual purpose, and, if fitness for a specific purpose was agreed, for that purpose.
4.11 We shall have the right to make excess or short deliveries of up to 5 % of the agreed delivery quantity.
4.12 Furthermore, we shall have the right to supply products with deviations customary in the trade in terms of quality, dimensions, weight, colour and equipment. Such goods shall be deemed to comply with the contract.
5. Delivery / Place of performance / Delivery time / Default in delivery / Packaging
5.1 Binding delivery dates and periods must be agreed expressly as binding. We shall make every endeavour to meet delivery dates and periods that are not binding or approximate (approx., about etc.).
Unless otherwise agreed, the place of our performance is Theodor-Heuss-Str. 18, 35440 Linden.
5.2 Periods for delivery and/or service shall begin with the customer's receipt of our order confirmation, in the absence thereof 5 calendar days after our receipt of the purchase order from the customer but not before all details about the execution of the order have been clarified and all other requirements to be fulfilled by the customer are met, in particular advance payments or securities agreed and cooperation required are made resp. provided in full. This shall apply accordingly to delivery dates and service dates. If the customer requests changes after placing the order, a new, reasonable delivery and/or service period shall begin when we confirm the change. "Reasonable" means a delivery period which corresponds to the originally remaining delivery period from the date of the change request plus the period of change negotiations and an additional scheduling period of 14 calendar days.
5.3 Deliveries may be made and/or services provided prior to expiry of the time for delivery/service. The date of delivery for obligations to be performed at the debtor’s place of business shall be deemed the date on which the products are reported ready for shipment, otherwise the date on which the products are sent. The date of delivery for obligations to be performed at the creditor’s place of business shall be deemed the date of delivery at the agreed place of delivery.
We have the right to make partial deliveries within the delivery period if the partial delivery can be used by the customer within the scope of the intended use under the contract, the delivery of the remaining ordered goods is assured and the customer incurs no significant additional expenditure or extra costs as a result, unless we agree to assume such costs. Additional expenditure is significant if it exceeds 5 % of the net remuneration for the performance owed under the contract.
5.4 If we default in delivery, the customer must first set us a reasonable period of grace for performance of at least 14 calendar days. If this elapses without result, damage claims for breach of duty, for whatever reason, shall exist only as stipulated in para. 11.
5.5 We shall not be in default as long as the customer is in default in fulfilling obligations towards us; this shall also include obligations under other contracts.
5.6 We shall not be obliged to deliver as long as the means of transport to be provided by the customer is not available unless we have undertaken to provide the means of transport, or it has been agreed that the obligation is to be performed at the creditor’s place of business. However, we shall have the right, where the shipping order or call order can be carried out, to arrange delivery with our own means of transport or hired means of transport. In this case, the goods shall be transported at the customer’s risk.
5.7 If no collection date, which we have to confirm for it to be binding, is given when the purchase order is placed resp. acceptance does not take place on the agreed collection date, we shall at our option ship the contractual goods with a carrier instructed by us or we shall store the contractual goods at the customer’s expense. We shall invoice the customer additionally for packaging, transport and insurance costs incurred (the latter if transport insurance was agreed) when the goods are shipped.
If the goods are stored, the customer shall pay a storage lump sum of 0.5 % of the net remuneration for each week for the stored goods. The right is reserved for the customer to prove that substantially lower costs (more than 10 % lower) have been incurred.
6. Force majeure / Delivery subject to availability
6.1 If we do not receive deliveries or services from our subcontractors for us to provide a delivery or service which is due from us under the contract, despite proper and adequate stocking prior to conclusion of the contract with the customer in terms of quantity and quality under our delivery or service agreement with the customer i.e. in such a way that, upon fulfilment of the supplier obligation towards ourselves, we can fulfil the contract with the customer according to the nature of the goods, quantity of the goods and delivery time and/or service (congruent stocking) or they are incorrect or not in due time for reasons for which we are not responsible or events of force majeure occur of significant duration (i.e. of longer than 14 calendar days), we shall notify our customer in due time in writing or text form. In such case, we shall have the right to postpone the delivery for the duration of the obstruction, or to rescind the contract in whole or in part for the part not yet fulfilled if we have met our foregoing duty to provide information and have not assumed a procurement risk or a guarantee of delivery. Events of force majeure are strikes, lock-outs, official intervention, energy shortages and shortages of raw materials, transport bottlenecks or obstructions through no fault of our own, company obstructions through no fault of our own, e.g. due to fire, water and damage to machinery, and any other obstructions which, when considered objectively, were not culpably caused by us.
6.2 If a delivery date or a delivery period is agreed with binding force and the agreed delivery date or the agreed delivery period is exceeded due to events according to para. 6.1, the customer shall have the right, after a reasonable period of grace of 14 calendar days has elapsed without result, to rescind the contract for the part not yet fulfilled. The customer shall have no further claims, especially claims for damages, in such case.
6.3 The above provision according to para. 6.2 shall apply accordingly if, for the reasons stated in para. 6.1, also without contractual agreement of a fixed delivery date, the customer cannot be objectively expected to adhere further to the contract.
7. Shipment / Passing of risk / Acceptance
7.1 Unless otherwise agreed in writing, delivery shall be DAP Incoterms 2010. In the case of an obligation to be performed at the debtor’s place of business and an obligation to be performed at the debtor’s place of business where the debtor must dispatch the goods, the goods shall be transported at the customer’s risk and expense.
7.2 Unless otherwise agreed, we reserve the right to choose the route and means of transport where shipment is agreed. We shall, however, endeavour to take the customer’s wishes into account with respect to the route and type of shipment without, however, the customer having a right to this. Any additional costs as a result, also where delivery freight paid is agreed, shall, like the transport and insurance costs, be borne by the customer.
If shipment is delayed with respect to the agreed date at the customer’s request or through the customer’s fault, we shall store the goods at the customer’s expense and risk. Para. 5.7 (2) shall apply mutatis mutandis. In such case, notice that the goods are ready for shipment shall be deemed equivalent to shipment.
7.3 The risk of accidental loss or accidental deterioration shall pass to the customer, where it has been agreed that the obligation is to be performed at the debtor’s place of business, upon the products to be delivered being handed over to the customer, where it has been agreed that the obligation is to be performed at the debtor’s place of business with the debtor having to dispatch the goods, upon the goods being handed over to the forwarding agent, carrier or firms otherwise entrusted with the shipment but at the latest when the products leave our works, our warehouse, our branch or the manufacturer’s works. The foregoing shall also apply if an agreed partial delivery is carried out. In the case of an agreed obligation to be performed at the creditor’s place of business, the risk shall pass upon provision of the goods for unloading at the agreed place of delivery.
7.4 If a shipment is delayed because we assert our right of retention due to the customer's default in payment in whole or in part or due to another reason, for which the customer is responsible, the risk shall pass to the customer at the latest as of the date on which the notice is sent to the customer stating that the delivery is ready for shipment and/or the service can be performed.
8. Notice of defects / Breach of duty in the form of defective performance due to material defects (warranty)
8.1 The customer must give us notice of recognisable material defects immediately but at the latest 12 calendar days after collection, in the case of delivery ex works or storage location, otherwise after delivery.
8.2 If the customer or a third party rectifies the products supplied by us incorrectly and the defect is based on this, we shall not be liable for the resulting consequences. This shall also apply to any changes in the delivery item undertaken without our prior consent.
8.3 Further claims by the customer for or in connection with defects or consequential damages caused by a defect, for whatever reason, shall exist only subject to the provisions of para. 11.
8.4 Our warranty (claims for breach of duty due to defective performance in the case of material defects) and liability arising therefrom shall be excluded if defects and damages connected therewith cannot be proved to be due to defective material, defective design, defective execution or defective manufacturing materials, or, if to be provided, defective instructions on use. Warranty and liability arising therefrom due to breach of duty for defective performance in particular shall be excluded with respect to the consequences of incorrect use, inappropriate storage conditions, and the consequences of chemical, electromagnetic, mechanical or electrolytic influences that do not correspond with standard influences provided for, which are inherent in the contract.
Any warranty and liability shall be excluded if the customer fails to observe the technical regulations or instructions for use stipulated by us in accordance with the contract concluded or our technical regulations or instructions for use specified in this respect if the defect is based on this.
8.5 Claims by the customer for expenses required for the purpose of supplementary performance, in particular transport, travel, labour and material costs, shall be excluded if the expenses increase because the delivery item has been subsequently brought to a location other than the customer’s delivery branch unless this complies with its intended use.
8.6 Claims based on defects shall not exist in the case of only a minor (i.e. hardly visible/perceptible) deviation from the agreed or customary quality or usability.
9. Prices / Payment terms / Objection of uncertainty
9.1 All prices are ex works resp. ex warehouse, in principle quoted net in euros, and exclude packaging for shipment by sea or air, freight, postage and, if a transport insurance was agreed, insurance costs, value added tax (if incurred by law) which shall be borne by the customer at the legally valid rate when payment is due, any country-specific charges in the case of delivery to countries other than the Federal Republic of Germany, and customs duties and other fees and public charges for the delivery/service.
Delivery is carriage paid for the following: - fittings and isolation valves: a s of a net value of the goods of € 500.-- - pipe deliveries: as of a net value of the goods of € 2,500.--
Postal and express shipments are excluded, where the costs exceeding the normal package freight are charged to the customer. Otherwise freight and packaging costs incurred shall be charged to the customer.
9.2 Payment methods other than cash payment or bank transfer shall require separate agreement between ourselves and the ordering party. This shall apply in particular to the issue of cheques and bills of exchange.
9.3 If taxes or charges are incurred by the customer or ourselves on the performance provided by us (withholding tax), the customer shall indemnify us against such taxes and charges.
9.4 We shall have the right to issue partial invoices according to the progress of order processing and / or request payments on account corresponding to the progress of processing.
9.5 The purchase price in the case of an obligation to be performed at the debtor’s place of business shall be due for payment upon receipt of notification that the goods are available; in the case of an obligation to be performed at the debtor’s place of business with the debtor having to dispatch the goods, upon the goods being handed over to the carrier; and, in the case of an obligation to be performed at the creditor’s place of business, upon delivery of the goods. The customer shall have the right to cash discount of 3 % if and in so far as payment is made within 10 calendar days of payment falling due - receipt of the money on our account – and if the customer is not in arrears with the payment of other invoices.
9.6 If the customer pays in a currency other than euros, payment shall only be satisfied when the foreign currency payment corresponds to the agreed euro amount on the date of receipt of payment.
9.7 Services that are not an integral part of the agreed scope of delivery shall be charged, unless otherwise agreed, on the basis of our respectively valid general price lists.
9.8 We shall have the right accordingly to increase the remuneration unilaterally where material production costs and/or material costs and/or product procurement costs, wage and ancillary wage costs, social security contributions as well as energy costs and costs due to environmental charges and/or currency regulations and/or changes in customs duties and/or freight rates and/or public charges increase if these have a direct or indirect impact on the manufacturing costs of the goods or procurement costs or costs of our contractually agreed services and if more than 4 months elapse between conclusion of the contract and delivery. An increase as mentioned above shall be excluded if the increase in costs for individual or all of the abovementioned factors is set off by a reduction in costs for other of the mentioned factors with respect to the overall cost burden for the delivery (balancing). If the above-mentioned cost factors are reduced without the reduction in costs being set off against the increase in other of the above-mentioned cost factors, the reduction in costs shall be passed on to the customer through a price reduction.
If the new price based on our right to adjust prices as stated above is 20% or higher than the original price, the customer shall have the right to rescind contracts not yet executed in full for the part not yet fulfilled. The customer can, however, assert this right only immediately after notification of the increased price.
9.9 If, according to the contract, we bear the freight charges by way of exception, the customer shall bear the additional costs arising from increases in freight rates after the contract was concluded.
9.10 Payment periods agreed shall run with effect from the date of delivery.
9.11 Where a bank transfer is agreed, the date payment is received by us or credited to our account resp. the account of the place of payment specified by us shall be deemed the payment date.
9.12 The customer’s default in payment shall cause all claims for payment under the business relationship with the customer to become due immediately. Regardless of any agreements to defer payments, agreements on the term of bills of exchange and payment by instalment, all the customer’s liabilities due to us shall in this case become due for payment immediately.
9.13 If payment terms are not met or circumstances known or recognisable that, in our proper commercial judgment, give rise to justified doubts as to the customer's creditworthiness, also including such facts which existed when the contract was concluded but which were unknown to us or did not have to be known to us, we shall have the right, notwithstanding further legal rights in such cases, to cease further work on current orders or stop the delivery, and to request advance payments or the provision of a bank guarantee issued by a German credit institution participating in the Deposit Protection Fund, for deliveries still outstanding, and, after expiry of a reasonable period of grace for providing such securities without result, to rescind the contract with respect to the part not yet fulfilled, irrespective of other legal rights. The customer shall be obliged to reimburse us for all damages incurred by the non-execution of the contract.
9.14 The customer shall have a right of retention or right of setoff only with respect to those counterclaims that are not disputed or have not been recognised by declaratory judgment. This shall apply mutatis mutandis if the counterclaim for set off is in the synallagma (i.e. in the relationship of reciprocity between two performances in the contract concluded with us) with our claim.
9.15 The customer can exercise a right of retention only if its counterclaim is based on the same contractual relationship.
9.16 Incoming payments shall first be used to repay costs, then interest and finally the principal claims according to age.
Any determination to the contrary by the customer when making payment shall be disregarded.
9.17 Timeliness of payment, by whatever means it is made, shall be determined solely by the date on which it is credited to our account. The value date shall be decisive for cheque payments. Payments by the customer must be made for our benefit, all postage and charges paid.
10. Retention of title, attachment
10.1 We retain title to all goods we deliver (hereinafter referred to as a whole as "goods subject to retention of title") until all our claims under the business relationship with the customer, including claims arising in the future from contracts concluded at a later date, are paid. This shall also apply to any balance for our benefit when any or all claims are incorporated by us in a current account and the balance has been established.
10.2 The customer must insure the goods subject to retention of title adequately, in particular against fire and theft. Claims against the insurance arising from an event of damage relating to goods subject to retention of title are herewith already assigned to us in the value of the goods subject to retention of title.
10.3 The customer shall have the right to resell the delivered products in the normal course of business. The customer is not permitted to make other disposals, especially pledging or granting of equitable lien. If the goods subject to retention of title are not paid for immediately by a third-party buyer when resold, the customer shall be obliged to resell under retention of title only. The right to resell the goods subject to retention of title shall cease to apply at once if the customer suspends its payment or defaults in payment to us.
10.4 The customer herewith already assigns to us all claims including securities and ancillary rights that accrue to the customer against the end user or third parties from or in connection with the resale of goods subject to retention of title. The customer may not reach an agreement with its buyers that excludes or prejudices our rights in any way or nullifies the assignment of the claim in advance. If the goods subject to retention of title are sold with other items, the claim against the third-party buyer amounting to the delivery price agreed between ourselves and the customer shall be deemed assigned unless the amounts applicable to the individual goods can be determined from the invoice.
10.5 The customer shall continue to have the right to collect claims assigned to us until revoked by us, this revocation being admissible at any time. At our request, the customer shall be obliged to provide us immediately with all information and documents necessary for the collection of assigned claims and, unless we do so ourselves, notify its buyers immediately of the assignment.
10.6 If the customer incorporates claims from the resale of goods subject to retention of title in a current account relationship with its buyers, the customer shall herewith already assign to us any recognised closing balance resulting for its benefit in the amount which corresponds to the total amount of the claim from the resale of our goods subject to retention of title, such claim being transferred to the current account relationship.
10.7 The customer must notify us immediately if the customer has already assigned claims to third parties arising from the resale of products delivered or to be delivered by us, especially due to real or unreal factoring, or has made other agreements which can prejudice our current or future security interests according to para. 10. In the case of unreal factoring, we shall have the right to rescind the contract and request the surrender of products already delivered. This shall also apply to real factoring if, according to the contract with the factor, the customer cannot freely dispose of the purchase price of the claim.
10.8 In the event of conduct in breach of the contract through the customer’s fault, especially in the case of default in payment, we shall have the right, after rescinding the contract, to take back all goods subject to retention of title. The customer shall be obliged in this case to surrender the goods subject to retention of title at once. We may at any time during normal business hours enter the customer's business premises to determine the stock of the goods delivered by us. Taking back the goods subject to retention of title shall only constitute a rescission of the contract if we expressly declare this in writing or this is provided for by mandatory statutory provisions. The customer must notify us immediately in writing of any third-party seizure of goods subject to retention of title or claim assigned to us.
10.9 If the value of the securities existing for us according to the foregoing provisions exceeds the secured claims as a whole by more than 10%, we shall be obliged, at the customer's request, to release securities at our option.
10.10 We treat and process the goods subject to retention of title as manufacturers but without obligation on our part. If the goods subject to retention of title are processed or connected inseparably with other items that do not belong to us, we shall acquire coownership in the new item in the ratio of the net invoice amount for our goods to the net invoice amounts for the other processed or connected items. If our goods are connected with other movable items into a uniform item that is deemed the principal item, the customer shall herewith already assign co-ownership thereof to us in the same ratio. The customer shall maintain ownership or co-ownership free of charge on our behalf. Rights of coownership accordingly arising shall be deemed goods subject to retention of title. The customer shall be obliged at any time at our request to provide us with the information required to assert our ownership or co-ownership rights.
10.11 In the event of attachment or other intervention by third parties, the customer shall notify us immediately in writing to enable us to bring an action pursuant to Section 771 ZPO [German Code of Civil Procedure]. If the third party is not in a position to reimburse us for the judicial and extra-judicial costs of an action pursuant to Section 771 ZPO, the customer shall be liable to us for the loss incurred by us.
11. Exclusion / Limitation of liability
11.1 Subject to the exceptions specified below, we shall not be liable in the case of breach of duty arising from the obligation, in particular not for claims by the customer for damages or reimbursement of expenses, for whatever legal reason.
11.2 The above exclusion of liability pursuant to para. 11.1 shall not apply:
in the case of own intentional or grossly negligent breach of duty and intentional or grossly negligent breach of duty by legal representatives or vicarious agents;
in the case of violation of material contractual obligations; “material contractual obligations” are obligations, the fulfilment of which defines the contract and on which the customer may rely;
in the event of injury to life, limb and health, also caused by legal representatives or vicarious agents;
in the case of liability under the Produkthaftungsgesetz [German Product Liability Act] or other mandatory statutory basis for liability.
11.3 If we or our vicarious agents are responsible only for slight negligence and none of the cases specified in bullet points 4, 5 and 6 of para. 11.2 above exists, we shall be liable, in the case of violation of material contractual obligations as well, only for damage typical for the contract and for foreseeable damage.
11.4 Our liability is limited for each individual event of damage to a maximum liability coverage of EUR 50,000.--. Any further liability shall be excluded.
11.5 Exclusion resp. limitation of liability according to para. 11.1 to 11.4 above and para. 11.6 below shall apply to the same extent for the benefit of our bodies, our executive and nonexecutive employees and other vicarious agents as well as our sub-contractors.
11.6There is no connection between the reversal of the burden of proof and the foregoing stipulations.
12. Place of performance / Place of jurisdiction / Applicable law
12.1 Place of performance for all contractual obligations is our company’s registered office except in the case of an obligation to be performed at the creditor’s place of business or other agreement.
12.2 Any disputes shall be settled, if the customer is a trader within the meaning of the Handelsgesetzbuch [German Commercial Code], exclusively before a competent court of law at the location of our company’s registered office. For the avoidance of doubt, this jurisdiction regulation in sentences 1 and 2 shall also apply to such circumstances between ourselves and the ordering party which can give rise to non-contractual claims within the meaning of Regulation (EC) No 864 / 2007. We shall also have the right, however, to bring an action against the customer at its place of general jurisdiction.
12.3 All legal relations between the customer and ourselves shall be governed exclusively by the law of the Federal Republic of Germany, in particular to the exclusion of the UN Sales Convention (CISG). It is expressly stated that this choice of law is also deemed to be such choice within the meaning of Art. 14 (1) (b) Regulation (EC) No 864 / 2007 and shall, therefore, also apply to non-contractual claims within the meaning of that Regulation. If the application of foreign law is mandatory in individual cases, our General Terms and Conditions shall be interpreted as meaning that the economic intent they pursue is preserved to the maximum possible extent.
13. Property rights, licence
13.1 Unless otherwise agreed, we shall only be obliged to deliver in the Federal Republic of Germany exempt from third-party industrial property rights and copyrights.
If a third party raises justified claims on account of infringement of property rights by products supplied by us to the customer, we shall be liable to the customer within the period specified in para. 8.6. as follows:
We shall at our option first try either to obtain a right of use at our expense for the deliveries in question or change the delivery item, while complying with the properties agreed under the contract, so that the property right is not infringed, or exchange the delivery item. If this is not possible for us or we reject this, the customer shall be entitled to its legal rights which are, however, based upon modification by the contract and these General Terms and Conditions of Contracts and Delivery.
The customer shall, in the event of infringement of property rights by our delivery items, only be entitled to rights against ourselves if the customer gives us notification in writing or text form immediately of the claims asserted by third parties, does not acknowledge any infringement, and all defensive measures and settlement negotiations are reserved for us.
If the customer ceases use of the products for reasons of damage minimisation or other good cause, the customer shall be obliged to advise the third party that cessation of use is not deemed to be an acknowledgement of the infringement of a property right.
If an appeal is filed by third parties against the customer for infringement of property rights resulting from the use of products supplied by us, the customer undertakes to notify us of this immediately and give us the opportunity to participate in any legal action. The customer shall support us in every way in conducting such a legal action. The customer must not take any action which could prejudice our legal position.
13.2 The customer shall have no claims if it is responsible for infringement of a property right. The customer shall also have no claims if the infringement of the property right is due to the customer’s specific requirements, an application which we could not foresee or the fact that the products are modified by the customer or used with products not supplied by us, which do not comply with the intended use, if the infringement of the property right is based on this.
13.3 If the customer duly fulfils its contractual obligations, it shall have the right to use the services as provided in the contract.
All copyrights, patent rights or other industrial property rights shall remain with us unless expressly and otherwise agreed. If patentable inventions are made at our company within the scope of implementing the contract, we shall grant the customer a non-exclusive and non-transferable right to use them under preferential economic conditions. This shall not affect the customer’s entitlement to have all rights arising from the invention if the achievement of the invention is a main contractual obligation on our part.
14. Return / Export control / Product approval / Import regulations
14.1 Goods delivered by us shall be taken back only after prior agreement, except in the case of justified rescission. The return delivery note issued by us and to be included with the goods shall be deemed consent. Goods can only be returned carriage paid resp. free domicile. In such case, we shall refund the net purchase price less 25 % handling charges but at least € 25.--.
No credit shall be given for goods which are not in their original packaging or not in a condition suitable for resale.
Goods on consignment / Procurement goods are excluded in general from return.
14.2 In the absence of any contractual agreements to the contrary with the customer, the delivered goods are intended for placement on the market for the first time within the Federal Republic of Germany or, in the case of delivery outside the Federal Republic of Germany, to the agreed country of first delivery (first country of delivery).
14.3 The export of certain goods by the customer from there may be subject to authorisation e.g. because of their nature or their intended purpose or final destination. The customer itself shall be obliged to check this and to comply strictly with the relevant export regulations and embargos for these goods, especially of the European Union (EU), Germany resp. other EU Member States and, if applicable, the USA or Asian or Arab countries and all third countries involved, if the customer exports the products supplied by us or has them exported.
Furthermore, the customer shall be obliged to ensure that before transfer to a country other than the first country of delivery agreed with us by the customer, the required national product approvals or product registrations are obtained and that the requirements set out in the national law of the country in question regarding the provision of user information in the national language are complied with as well as all import regulations.
14.4 The customer shall in particular check and ensure, and, on request, provide evidence to us that:
the products provided are not intended for use in armaments, nuclear facilities or weapon technology;
no companies and persons specified on the US Denied Persons List (DPL) are supplied with original US goods, US software and US technology;
no companies and persons specified on the US Warning List, US Entity List or US Specially Designated Nationals List are supplied with original US products without relevant authorisation;
no companies and persons are supplied who are specified on the List of Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists or the EU Terrorist List or other relevant negative lists for export controls;
no military recipients are supplied with the products delivered by us;
no recipients are supplied that violate other export control regulations, especially of the EU or the ASEAN countries;
all early-warning indications of the competent German or national authorities of the respective country of origin of the delivery are complied with.
14.5 Goods supplied by us may only be accessed, used and exported if the above-mentioned checks and assurances have been carried out resp. provided by the customer; otherwise the customer must refrain from carrying out the intended export and we shall not be obliged to perform.
14.6 Where goods supplied by us are passed on to third parties, the customer undertakes to oblige such third parties in the same way as specified in para. 14.2-14.5, and to notify them of the need to comply with these legal provisions.
14.7 The customer shall at its own expense ensure, where delivery outside the Federal Republic of Germany is agreed, that the goods to be supplied by us comply with all national import regulations of the first country of delivery.
14.8 The customer shall indemnify us against all damages and expenses resulting from the culpable breach of the foregoing obligations pursuant to para. 14.1-14.7.
15. Institution of insolvency proceedings / Incoterms / Written form / Severability clause
15.1 A petition to institute insolvency proceedings against the customer or the customer's suspension of payment which, despite notice, is not based on rights of retention shall entitle us, in the event of the customer at that time being in breach of duty with respect to us, to rescind the contract at any time, if the customer violates a contractual obligation at that time, or to make fulfilment of the contract dependent on the prior fulfilment of the payment obligation. In the case of continuing obligations, we shall have the right, in lieu of rescission, to terminate the contract without notice.
15.2 If commercial terms are agreed according to the International Commercial Terms (INCOTERMS), the INCOTERMS 2010 shall apply.
15.3 All agreements, collateral agreements, assurances and contract amendments shall only be valid when given in writing. This shall also apply to cancellation of the written form requirement.