1. Scope
1. These General Terms and Conditions shall apply to all of our goods and services, including those delivered in the future. Terms and Conditions of the Customer (hereinafter also referred to as "Buyer") shall be effective only if we (hereinafter also referred to as the "Shipper") have accepted same in writing for the respective agreement made.
2. Our General Terms and Conditions shall be deemed accepted at the latest upon acceptance of our delivery or service. In the event that one of the provisions or a portion of a provision of these General Terms and Conditions should be ineffective, this shall not affect the effectiveness of the remaining Terms and Conditions. The Parties shall undertake to replace the ineffective provision with a provision that meets the intended business purpose of the ineffective provision as closely as possible.
2. Delivery
1. Delivery times and dates shall be considered only approximate unless they have been expressly designated binding by us in writing.
2. Delivery times shall begin on the date of our order confirmation, however, not until all technical design and performance details have been clarified and shall be understood as of the shipment departure location.
3. Events of force majeure shall entitle us to defer the delivery by the duration of the obstruction and a reasonable restart period. All circumstances that make delivery significantly more difficult or impossible for us, e.g. currency and trade policy related measures or other measures taken by a supreme body, as well as strikes, lock-outs, operational interruptions (e.g. fire, machine or roller break-down, insufficient supply of commodities or energy) as well as transportation route obstructions, shall be considered equivalent to force majeure regardless of whether such circumstances occur due to acts we are not responsible for at our end, at the plant delivering the goods or at a (sub-) supplier's end.
4. In the event that our delivery should be late, the Buyer shall be required to set a reasonable remedial deadline and to communicate same to us in writing.
Once this remedial deadline has expired without producing results, the Buyer shall have the option to rescind from the Agreement as far as the quantities and deliverables are concerned that have not been dispatched or reported as ready for shipment by the time the remedial period has expired. The Buyer shall have the right to rescind from the entire Agreement only if the partial deliveries already made are not of interest to the Buyer.
If the Buyer should incur damages as a result of a delay we have not caused intentionally or through an act of gross neglect, we shall reimburse the verifiable damages foreseeable at the time the Agreement was made, which shall, however, not exceed 70% of the merchandise value of the delivery or service that occurred with a delay or not at all. This shall be without prejudice to the Buyer's right to rescind from the Agreement upon fruitless expiration of a remedial deadline set for us to meet.
5. We shall have the right to perform partial deliveries within reason. Deliveries of higher or lesser volumes than those ordered shall be permitted as long as they are within standard industry practices and the prices are adjusted accordingly.
3. Prices
1. The prices quoted are ex works or warehouse subject to change, excluding freight, customs duty and packaging. The prices effective on the date of delivery shall be charged.
2. In the event that our cost pricing should change for reasons beyond our control (e.g. in the event of government agency action) or If freight rates, fees or charges should be introduced or increased after the Agreement was made, we shall have the right to adjust our prices accordingly.
4. Risk Transfer
1. The risk shall transfer to the Buyer upon shipment ex works; this shall also apply to freight prepaid shipments. In the event that shipment should be delayed due to acts the Buyer is responsible for, the risk shall transfer to the Buyer as soon as the goods are ready for shipment.
2. The Shipper shall have the right to choose the mode and type of transportation.
3. If dispatch or pickup arrangements for goods made available by us should not occur in a timely manner, we shall have the right but shall not be under any obligation to warehouse the goods at the expense and risk of the Buyer and to bill same as delivered "ex works."
4. The Shipper shall not make any transportation insurance arrangements for the goods.
5. Deficiency Complaints and Warranties
We shall assume liability for deficiencies of the goods, which shall also include the absence of confirmed properties, as follows:
1. Deficiency complaints shall be filed with us in writing, via telefax or telegram immediately after receipt of the goods. In the event that deficiencies should arise, any handling and processing of the goods shall be suspended immediately.
2. In the event that the Buyer should fail to give us the opportunity to immediately verify the deficiencies of the merchandise and in particular if Buyer should fail to make available to us upon our request the goods that are allegedly or samples thereof, all entitlements to compensation for such deficiencies shall be rendered void if such voidance is permitted by law.
3. In the event of justified deficiency complaints that have been filed promptly, we shall principally accept returns of deficient goods and replace them with goods that are in perfect condition; however, in lieu of the former we shall also have the option to take alternative remedial action while taking into account the interests of the Buyer. We shall always be given the opportunity to take remedial action within a reasonable period of time.
4. In the event that we should fail to meet our replacement or remedial action obligations completely or if we should fail to do so in a contract-compliant manner, the Buyer - Buyer's entitlement to compensation for damages notwithstanding - shall have the right to rescind from the Agreement or to demand a reduction of the remuneration.
5. The above terms and conditions shall also apply to goods and services other than contract compliant merchandise.
6. Deficiency claims shall be subject to a maximum statute of limitations period of 12 months after the transfer of the risk date.
6. Payment Terms/Set-Off Clause
1. Unless otherwise agreed upon, payments shall be due within 30 days after the invoice date, net.
2. We shall be entitled to collateral for our receivables that is standard in terms of the type and scope provided, even if our receivables or conditional or dated.
3. The Buyer shall not be entitled to any withholding rights. The setting off of our receivables against counter demands shall be permitted only for receivables we have accepted as existing and due or that have been found to be legally effective by a court of law.
4. In the event of late payment, the Buyer shall be required to pay interest in the amount of the German Central Bank published prime rate plus 8% plus value added tax as of the due date; this shall be without prejudice to further damage compensation claims.
5. If the Buyer should fail to meet Buyer's payment obligations or if we should become aware of circumstances that based on diligent professional assessment do give rise to significant suspicions with regard to Buyer's creditworthiness, all of our receivables due from the Buyer shall be rendered due for immediate payment upon our sending of a pertinent written notice to the Buyer.
In such a case we shall be required to continue making further deliveries only if the Buyer offers to pay in advance.
7. Title Retention
1. Until payment in full of the purchase price and any ancillary receivables due has been made the goods shall remain the property of the Shipper. Until said date the goods may neither be sold nor attached.
2. This title retention clause shall also apply if the goods delivered are either processed or altered and subsequently sold to customers by the Buyer. In this case the Buyer's accrued receivables due from Buyer's customers shall be assigned to the Shipper in the amount equivalent to the respective Supplier invoice(s) pending payment.
3. In the event that the Buyer should be in default of payment, the return or seizure of the delivered goods may be demanded by the Shipper without Shipper being required to precede such action with a warning notice or further default notices.
8. Tools, Printing Artwork
1. Buyer shall be charged a tooling participation fee for tools and printing artwork compiled or modified by us or by a third party commissioned by us for the completion of Buyer's orders. This fee shall be paid upon placement of the order and shall not be eligible for deduction of a cash discount. In the event that the Buyer should fail to place a purchase order within 6 months, we shall have the right to charge Buyer for the balance between the full tooling costs and the tooling participation fee paid.
2. Buyer shall absorb the costs for tooling modifications initiated by the Buyer.
3. The Shipper shall carefully store the tools for future orders and shall be responsible for their care. Shipper's obligation to store the tools shall be rendered void if no further orders have been received from the Buyer within a year's time.
4. Given that the payment of the tooling participation fee does not cover our expenditures incurred for the engineering work, manufacturing, setting up, continuous care for the tools, etc., the tools shall remain Shipper's property. The tools may be surrendered only in exchange for reimbursement of all expenses incurred.
9. Intellectual Property Rights
1. In the event that the Shipper should be required to deliver in compliance with Buyer's drawings, models or samples, the Buyer shall have the responsibility to ensure that same do not infringe any intellectual property rights held by third parties. Buyer shall be required to indemnify the Shipper against any third party claims. In the event that the Shipper is prohibited from manufacturing or delivering by a third party citing intellectual property rights held by said third party, Shipper shall have the right to suspend the work immediately and to demand reimbursement of the costs incurred as well as compensation for damages, in particular citing grounds such as lost profits and costs incurred.
2. Tools, drafts, samples, models and other production documentation shall remain our property; any inherent copyrights shall continue to be Shipper's. Any use in the absence of our express consent shall be prohibited and shall establish grounds for damage compensation obligations.
10. Liability and Statues of Limitation
1. Our assumption of liability shall be governed exclusively by these General Terms and Conditions. Any and all entitlements not expressly granted herein - including entitlements to damage compensation - shall be excluded to the extent permitted by law, unless they are based on grounds of acts of intent or gross neglect by the Shipper or by one of Shipper's statutory representatives or agents or in the event of physical injury.
2. All claims against us shall be subject to a maximum statute of limitations of one year, provided applicable laws do not mandate shorter statutes of limitations or shorter periods have been agreed upon as a result of these General Terms and Conditions.
11. Place of Fulfilment and Jurisdiction
The place of jurisdiction for all matters, including document, bank draft and cheque issues shall be Passau, Germany. The place of fulfilment shall be Passau, Germany. The governing law shall be the law of the Federal Republic of Germany.
The applicability of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CSIG) and of any of the Hague Conventions on Purchases shall be excluded.