General Terms and Conditions

§ 1 Validity

(1) All deliveries, services and offers of the Seller shall be made exclusively on the basis of these General Terms and Conditions of Delivery.
These are an integral part of all contracts that the Seller concludes with its contractual partners (hereinafter also referred to as “Customer”) for the deliveries or services offered by it.
They shall also apply to all future deliveries, services or offers to the Customer, even if they are not separately agreed again.

(2) Terms and conditions of the Client or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases.
Even if the Seller refers to a letter that contains or refers to the terms and conditions of the Client or a third party, this shall not constitute consent to the validity of those terms and conditions.

§ 2 Offer and conclusion of contract

(1) All offers of the Seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period.
The Seller may accept orders or commissions within fourteen days of receipt.

(2) The legal relationship between the Seller and the Customer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery.
This fully reflects all agreements between the contracting parties regarding the subject matter of the contract.
Verbal promises made by the Seller prior to the conclusion of this contract shall not be legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.

(3) Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing to be effective.
Telecommunication, in particular by fax or e-mail, shall suffice to comply with the written form requirement, provided that a copy of the signed declaration is transmitted.

(4) Information provided by the Seller on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate unless expressly agreed otherwise.
They are not guaranteed characteristics, but descriptions or identifications of the delivery or service.
The Seller is entitled to deliver up to 5 % more or less than agreed.
Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted, unless expressly agreed otherwise.

(5) The Seller reserves the right of ownership or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Client.
The Customer may not make these items accessible to third parties, disclose them, use them itself or through third parties or reproduce them without the express consent of the Seller.
At the Seller’s request, the Client must return these items to the Seller in full and destroy any copies made if they are no longer required by the Client in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 3 Prices and payment

(1) The prices apply to the scope of services and deliveries listed in the order confirmations.
Any over- or under-deliveries of up to 5 % in accordance with § 2 para.
4 shall be taken into account as a percentage of the agreed purchase price.
Otherwise, additional or special services shall be invoiced separately.
Prices are quoted in EURO ex works plus packaging, statutory VAT, customs duties and fees and other public charges (EXW) for export deliveries.

(2) If the agreed prices are based on the Seller’s list prices and delivery is to take place more than four months after conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply.

(3) Invoice amounts are to be paid within thirty days without any deduction, unless otherwise agreed in writing.
The date of receipt by the Seller shall be decisive for the date of payment.
Unless otherwise expressly agreed, payment by check/bill of exchange is not permitted.
Checks shall not be considered payment until they have been cashed.
If the customer fails to pay by the due date, the outstanding amounts shall bear interest at 8% p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.

(4) Down payments and advance payments shall be made plus any applicable statutory VAT.
The Customer shall be liable in the amount of the legally applicable value added tax in the event that this is not invoiced in the case of de facto domestic deliveries within the meaning of the German Value Added Tax Act, in particular in the event of collection and subsequent failure to provide the Seller with the necessary proof of export/transfer.

(5) Any international money transfer costs incurred shall be borne by the client.

(6) Offsetting against counterclaims of the client or the retention of payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established.

(7) All deliveries by the Seller shall be subject to the proviso that the Customer is creditworthy in the opinion of the Seller.
If the Seller is of the opinion that the Client’s financial situation does not justify the manufacture or delivery of the products under the above conditions, the Seller may demand advance payment or a down payment or stipulate other terms of payment as a prerequisite for delivery.
In this case, the Seller shall also be entitled to withhold, interrupt, delay or completely discontinue goods credits, deliveries and all other services.

(8) If the Client is in default of payment or otherwise in arrears, the Seller shall be entitled to refuse performance or delivery until all payments due have been made.
Furthermore, the Seller shall be entitled to withhold, interrupt, delay or completely discontinue goods credits, deliveries and all other services without being obliged to compensate for any damage incurred.
These rights shall apply without prejudice to any other contractual or statutory rights and claims of the Seller.

§ 4 Delivery and delivery time

(1) Deliveries are ex works (EXW).

(2) Deadlines and dates for deliveries and services promised by the Seller are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed.
If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with transportation.

(3) The Seller may – without prejudice to its rights arising from default on the part of the Client – demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Client fails to meet its contractual obligations to the Seller.

(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not responsible.
If such events make delivery or performance significantly more difficult or impossible for the Seller and the hindrance is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract.
In the event of hindrances of a temporary duration, the delivery or performance deadlines shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period.
If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.

(5) The Seller shall only be entitled to make partial deliveries if

– the partial delivery can be used by the customer within the scope of the contractual purpose,
– the delivery of the remaining ordered goods is ensured and
– the customer does not incur any significant additional work or additional costs as a result (unless the seller agrees to bear these costs).

(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.

§ 5 Place of fulfillment, shipping, packaging, transfer of risk, acceptance

(1) The place of fulfillment for all obligations arising from the contractual relationship is 92676 Eschenbach i.d.OPf., Germany, unless otherwise specified. If the Seller is also responsible for installation, the place of performance shall be the place where the installation is to be carried out.

(2) The shipping method and packaging are subject to the dutiful discretion of the seller.

(3) The risk shall pass to the Customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment.
This shall also apply if partial deliveries are made or if the seller has assumed other services (e.g. shipment or installation).
If the shipment or handover is delayed due to a circumstance for which the Client is responsible, the risk shall pass to the Client from the day on which the delivery item is ready for shipment and the Seller has notified the Client of this.

(4) Storage costs after the transfer of risk shall be borne by the Client.
In the case of storage by the Seller, the storage costs shall amount to 0.25 % of the invoice amount of the delivery items to be stored per expired week.
We reserve the right to claim and prove further or lower storage costs.

(5) The shipment shall only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Client and at the Client’s expense.

(6) Insofar as acceptance is to take place, the purchased item shall be deemed to have been accepted if

– the delivery and, if the seller also owes the installation, the installation has been completed,
– the Seller has informed the Client of this with reference to the fiction of acceptance in accordance with this § 5 (6) and has requested acceptance,
– twelve working days have passed since delivery or installation or the client has started using the purchased item (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation and
– the customer has failed to accept the goods within this period for a reason other than a defect notified to the seller which makes the use of the purchased item impossible or significantly impairs it.

§ 6 Warranty, material defects

(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.

(2) The delivered items must be carefully inspected immediately after delivery to the Client or to the third party designated by the Client.
With regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, they shall be deemed to have been approved by the customer if the seller does not receive a written notice of defects within seven working days of delivery.
With regard to other defects, the delivery items shall be deemed to have been approved by the Client if the notice of defects is not received by the Seller within seven working days of the time at which the defect became apparent; however, if the defect was already apparent to the Client at an earlier time under normal use, this earlier time shall be decisive for the start of the notice period.
At the Seller’s request, a rejected delivery item shall be returned to the Seller carriage paid.
In the event of a justified notice of defects, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

(3) In the event of material defects in the delivered items, the Seller shall initially be obliged and entitled to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time.
In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the customer may withdraw from the contract or reduce the purchase price appropriately.

(4) If a defect is due to the fault of the seller, the client can demand compensation under the conditions specified in § 8.

(5) In the event of defects in materials from other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client.
Warranty claims against the Seller for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency.
For the duration of the legal dispute, the limitation period for the Client’s relevant warranty claims against the Seller shall be suspended.

(6) The warranty shall not apply if the Client modifies the delivery item or has it modified by a third party without the Seller’s consent and this makes it impossible or unreasonably difficult to remedy the defect.
In any case, the Client shall bear the additional costs of remedying the defect resulting from the modification.

(7) Any delivery of used items agreed with the client in individual cases shall be made to the exclusion of any warranty for material defects.

§ 7 Industrial property rights

(1) The Seller warrants in accordance with this § 7 that the delivery item – as provided by him – is free of industrial property rights or copyrights of third parties in the Federal Republic of Germany.
Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.

(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the Customer by concluding a license agreement.
If he does not succeed in doing so within a reasonable period of time, the client is entitled to withdraw from the contract or to reduce the purchase price appropriately.
Any claims for damages on the part of the client are subject to the limitations of § 8 of these General Terms and Conditions of Delivery.

(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Client or assign them to the Client.
In such cases, claims against the Seller shall only exist in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, for example due to insolvency.

§ 8 Liability for damages due to fault

(1) The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this § 8 insofar as fault is involved.

(2) The Seller shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations.
Material contractual obligations are the obligation to deliver the delivery item on time, its freedom from defects that impair its functionality or usability more than insignificantly, as well as the obligation that aims to protect the life or limb of the customer’s personnel or to protect the customer’s property from significant damage.

(3) Insofar as the seller is liable for damages in accordance with § 8 (2), this liability is limited to damages which the seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which he should have foreseen if he had exercised due care.
Indirect damage and consequential damage resulting from defects in the delivery item shall only be eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.

(4) In the event of liability for simple negligence, the Seller’s obligation to pay compensation for property damage and any further financial losses resulting therefrom shall be limited to an amount of EUR 1 million per claim, even if this involves a breach of material contractual obligations.

(5) The above exclusions and limitations of liability apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the seller.

(6) Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the Seller, this is done free of charge and to the exclusion of any liability.

(7) The limitations of this § 8 shall not apply to the Seller’s liability for willful conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§ 9 Retention of title

(1) The retention of title agreed below serves to secure all existing current and future claims of the Seller against the Buyer arising from the supply relationship existing between the contracting parties regarding material deliveries (including balance claims from a current account relationship limited to this supply relationship).

(2) The goods delivered by the Seller to the Customer shall remain the property of the Seller until all secured claims have been paid in full.
The goods and the goods covered by the retention of title which take their place in accordance with the following provisions are hereinafter referred to as “goods subject to retention of title”.

(3) The Client shall store the reserved goods free of charge for the Seller.

(4) The client shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event of realization (paragraph 9) occurs.
Pledges and transfers by way of security are not permitted.

(5) If the reserved goods are processed by the Client, it is agreed that the processing is carried out in the name and for the account of the Seller as manufacturer and that the Seller directly acquires ownership or – if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item.
In the event that no such acquisition of ownership should occur for the Seller, the Client hereby transfers its future ownership or – in the above ratio – co-ownership of the newly created item to the Seller.
In the event that no such acquisition of ownership should occur on the part of the seller, the customer hereby transfers his future ownership or – in the above ratio – co-ownership of the newly created item to the seller as security.
If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the seller shall transfer to the customer the co-ownership of the uniform item in the proportion specified in sentence 1, insofar as the main item belongs to the seller.

(6) In the event of the resale of the goods subject to retention of title, the customer hereby assigns to the seller by way of security the resulting claim against the purchaser – in the case of co-ownership of the seller in the goods subject to retention of title in proportion to the co-ownership share.
The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction.
The seller revocably authorizes the customer to collect the claims assigned to the seller in his own name.
The seller may only revoke this direct debit authorization in the event of liquidation.

(7) If third parties seize the goods subject to retention of title, in particular by attachment, the Client shall immediately inform them of the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights.
If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Customer shall be liable to the Seller for these costs.

(8) The Seller shall release the goods subject to retention of title and the items or claims taking their place if their value exceeds the amount of the secured claims by more than 50%.
The selection of the items to be released thereafter shall lie with the Seller.

(9) If the seller withdraws from the contract in the event of breach of contract by the customer – in particular default of payment – (enforcement event), he shall be entitled to demand the return of the reserved goods.

§ 10 Information on the goods, their use and processing

(1) Section 2 (4) of these GTCs shall apply to the information provided by the Seller on the subject matter of the delivery / service.

(2) Whether our goods are suitable for the purposes of the Client / the intended use by the Client in compliance with the information provided by the Seller on the subject matter of the delivery or service in accordance with § 2 clause 4 of these GTCs shall be the sole responsibility of the Client to check / determine and shall be the sole responsibility of the Client, unless otherwise agreed.

§ 11 Trademarks

(1) It is not permitted to offer or supply substitute products instead of the seller’s products with reference to these products or to associate the seller’s product names, whether protected or not, with the word “substitute” in price lists and similar business documents or to juxtapose them with the names of substitute products.

(2) Furthermore, when using the Seller’s products for manufacturing purposes or for further processing, it is not permitted to use the Seller’s product designations, in particular its trademarks, on such goods or their packaging or in the associated printed matter and advertising material without the Seller’s prior consent, in particular as a component designation.
The delivery of products under a trademark is not to be regarded as consent to the use of this trademark for the products manufactured therefrom.

§ 12 Export control

(1) The client undertakes to comply with the relevant national and international export control regulations, in particular Regulation (EC) 2580/2001 and Regulation (EC) 881/2002 as amended, and, if applicable, the U.S. Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR) and other end-use/end-user related controls (“catch-all”).
The Customer shall obtain in a timely manner all necessary permits and licenses as well as all other necessary authorizations required for the use or export of the delivery item under all such applicable laws.

(2) The Client undertakes to issue End Use Certificates and to provide further documents required for the application to the competent authorities, if requested by the Seller.

(3) The Client shall be liable to the Seller for breaches of the obligations under Section XIV.1 and Section XIV.2, as well as for damages as a result of official measures that result directly from incorrect information provided by the Client.

§ Section 13 Confidentiality and data protection

(1) The contracting parties shall keep strictly confidential and treat as confidential all information or information material which becomes known to them within the scope of the contractual relationship, whether verbally, in writing or in any other way, whether directly or indirectly, and which is designated as confidential or which, due to the nature of the matter, is usually regarded as confidential, shall use it exclusively within the scope of the services covered by this contract and shall not pass it on to third parties or make it accessible to third parties in any other form without the consent of the other party and shall take all reasonable precautions to exclude and avoid access to it by any third parties.
In particular, the customer shall treat as confidential all information relating to the methods and technical procedures used by us.

(2) Exemption from the confidentiality obligation
The only information and information material exempt from this confidentiality obligation is
– which is already in the public domain at the time it becomes known, i.e. is readily accessible to any third party,
– is lawfully made accessible to a contracting party after it becomes known by a third party who is not subject to any confidentiality obligation towards the other contracting party,
– must be disclosed to an authority or other authorized third party upon request,
– must necessarily be disclosed to legal or tax advisors of the respective partner for the purpose of providing advice.

(3) The parties shall impose a corresponding confidentiality obligation on all employees or third parties that they use to provide the services covered by this contract.

(4) We undertake not to violate data protection regulations within the scope of our contractual services.
We obligate our employees to comply with the provisions of data protection law and oblige these persons to maintain confidentiality.
We shall coordinate data protection-sensitive activities with the customer’s data protection officer.

(5) Unless otherwise agreed, the obligations under Section 13 (1) to (4) of these GTC shall apply in perpetuity.

§ 14 Final provisions

(1) If the Client is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Client shall be, at the Seller’s discretion, Weiden i.d.OPf.
Germany or the registered office of the customer.
In these cases, however, Weiden i.d.OPf.
Germany shall be the exclusive place of jurisdiction.
Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

(2) The relationship between the Seller and the Customer shall be governed exclusively by the law of the Federal Republic of Germany.
The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.

(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.

Note:

The Client acknowledges that the Seller stores data from the contractual relationship in accordance with Section 28 of the German Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) to the extent necessary for the fulfillment of the contract.

Status November 2014