General Terms and Conditions of Delivery and Payment (Export)

I. Area of Application and Making of Contract

  1. Our General Terms and Conditions of Delivery and Payment apply only for merchants, legal persons of public law or a public law fund.
  2. Our terms apply for any contracts – also future ones -, deliveries and other services including advisory and information services. Any other agreements are not applicable.
  3. These terms override any forms or conditions referred to by the buyer that may influence the contract. These terms are, herewith, explicitly objected to. They will be deemed accepted by us only if we provide explicit written confirmation.
  4. Orders will only become binding when confirmed by us in writing. Any changes and supplements need to be made in writing. Any offers that have not been specified as being firm offers will stay without obligation until the time of making the contract.

II. Prices and Packaging

  1. Unless otherwise agreed, prices are understood ex works or ex warehouse (EXW Osnabrück/Lingen or Jülich according to Incoterms 2000) including export taxes that may be imposed, however excluding the valid VAT.
  2. The charge will be based on the weights determined by us. The prices/rates valid on the day of dispatch apply for the freight and the VAT that we charge. Any price increases until the day of dispatch that are due to any other cost increases can be passed on to the orderer after six weeks from the day of making the contract.
  3. We reserve the right to charge an adequate extra amount for small orders.

III. Dispatch and Passing of Risk

  1. Choice of dispatch route, transportation means and protective packing, as well as choice of forwarding agent or carrier, is at our option up to the agreed place of delivery, under the condition that the delivery is prompted by us on the basis of express written terms.
  2. Even in the case of carriage-free deliveries, the risk of loss or damage of the goods passes over to the orderer when leaving the works or warehouse. In the case of dispatch delays that the orderer is liable for, the risk passes over to him at the time when he is notified that the goods are ready for dispatch.
  3. Upon written request of the orderer, the goods are insured at his cost against the risks to be named by him.
  4. We may deliver in parts as long as this is reasonable for the orderer.

V. Delivery Periods and Delivery Dates

  1. Delivery periods are only obligatory for us, if we have explicitly confirmed them. They start on the date of our order confirmation - subject to the punctual receipt of all documents, engineering drawings, technical specifications, necessary authorizations and releases as well as observation of the agreed terms of payment by the orderer. Our deliveries are subject to the fact that we ourselves receive full delivery punctually.
  2. Should we fail to observe an agreed delivery period due to our negligence, the orderer is authorized, after expiry of a reasonable period of grace, to withdraw from the contract. When exceeding a delivery period with part of our delivery, the orderer is authorized to withdraw from the whole contract if the partial service is of no interest to him. If we exceed the term of delivery, the orderer also has the right to claim damages for losses occasioned by the delay. The compensation for damage is limited to 5 % of the agreed price for that part of the total delivery that due to the delay cannot be delivered on time or pursuant to the contract. Any additional damages claims of the orderer are excluded in all cases of delayed delivery, unless we are required by law to take over liability due to intent or gross negligence.
  3. Any events of Acts of God or any other circumstances that we are not liable for and that complicate the dispatch or make it impossible, give us the right to postpone the delivery for the time of the disturbance, or to withdraw from either the whole contract or from part of the contract, due to the part that has not yet been fulfilled; e.g. strikes or lock-outs in our branch of industry, scarcity of raw materials or energy, mobilization, war and riots, regardless of whether these circumstances affect us, a supplier or a sub-supplier. The orderer also has the right to withdraw from the contract if the execution of the order is becoming unreasonable for him.We shall inform the orderer if we are unable to deliver, and in the case of our withdrawal from the contract, moneys prepaid by the orderer will be refunded in full.

V. Protection of Utility Patent, Copyright, Protection of Design Patent

  1. All rights of our inventions and work results are reserved. In Particular this concerns drafts, plans, samples, models, prototypes, demonstration models, exhibits, display models, no matter in which form.
  2. This right remain in our possession no matter if our inventions and work results are developed in preparation for or by completing an order.
  3. Utilisation of our inventions and work results is only permitted if confirmed by us in writing. This written permission is also needed for tranferring our inventions or work results to third parties for their use, particularly the transfer of plans, samples and/or prototypes for replika and improvement.
  4. We reserve the right to charge a contract penalty of € 10,000.00 (ten thousand) regardless of negligance or fault for each violation of the aforesaid prohibition of utilisation and transfer. Further we are allowed to claim additional damages including lost profit.
  5. Criminal proccedings concerning infringement of our copyrights are independent of claiming our rights under civil law.

VI. Terms of Payment

  1. Any payments must be made in Euro and exclusively to us, unless any other agreement has been made in writing.
  2. Unless otherwise agreed, our invoices must be settled with 2 % discount
  3. allowance for settlement within 8 days or within 30 days net from the invoice date. The allowance of a discount is subject to the fact that all earlier unquestioned invoices due have been settled. We will not allow any discount for payment with bill of exchange.
  4. Should payment be delayed by the orderer, we are authorized to claim an interest rate of 8 % above the respective basic tax rate of the European Central-Bank. We reserve the right to claim damages for losses occasioned by the delay.
  5. In the case of delayed payment we are also authorized to execute outstanding deliveries only against advance payment and - after unsuccessful summons to pay - hand on hand or for lodging of security withdraw from the contract and claim damages for breach of duty after expiry of a reasonable period of grace.
  6. The orderer can only set off claims against such claims that are unquestioned or validated.

VII. Property Reservation

  1. The goods supplied (goods on commission) will remain our property pending full payment of all demands that we have against the orderer arising from the commercial relation. In the case of a current account, the property reservation pledged as security also comprises the shown balance.
  2. For the time of property reservation, the orderer holds the goods on commission for us in trust. He is obliged to keep them separated from his property and the property of third parties, to store them adequately, to secure and insure them and to mark them as our property. For this period he is not allowed to pledge the goods on commission or give them in security. He is only allowed to sell the goods on commission in the regular course of business and only under the condition that he is paid by his customer or that he agrees with his customer that ownership will not pass to him until full payment.
  3. Should the orderer sell the goods on commission, he now thereby assigns his future claims against his customer arising from the sale with any additional rights to us as security – including balance claims that may arise from a current account. Should the goods on commission be sold together with other goods without agreeing an individual price for the goods on commission, the orderer, with priority over the rest of the claim, will assign to us the part of the total demand that corresponds to the price of the goods on commission invoiced by us. For the time of the property reservation, the orderer has to hold any amount of money received for the goods on commission in trust for us and keep it separated from his means and the means of third parties.
  4. The orderer may process or modify the goods on commission or connect them to other objects. In either case this is done on our behalf. The orderer will keep the new objects for us with the care of a full merchant. The processed, modified or connected goods count as goods on commission.
  5. When objects that we possess are processed, modified or connected to other objects that we do not possess, we are entitled to joint ownership to the new object up to the amount of the proportional value between the processed, modified or connected goods on commission and the value of the other processed goods at the time of being processed, modified or connected. If the orderer acquires sole ownership of the new objects, he grants us joint ownership of the new objects up to the amount of the proportional value between the processed, modified or connected goods on commission and the value of the other processed goods at the time of being processed, modified or connected.
  6. Should the orderer sell the new objects, he assigns to us his demands against his customer together with any additional rights that may arise from the sale as a security - including any balance demands that may arise from the current account. However, the assignment only applies up to the amount that corresponds to the value of the processed, modified or connected goods on commission that we have invoiced. The part of the demand assigned to us must take preference.
  7. If the orderer incidents the goods on commission with a piece of land or connects them to movable goods, he shall assign to us, as a security, his compensation demands for the connection, together with any additional rights – including balance claims that may arise from the current account up to the amount of the proportional value between the connected goods on commission and the other connected goods at the time of being connected.
  8. Should the value of all security rights we are entitled to, exceed the amount of all secured demands by more than 20%, we will release an appropriate part of the security rights on the orderer’s request.
  9. Unless countermanded by us, the orderer is allowed to include his payment demands from selling or connecting the goods on commission that he has assigned to us. We are entitled to countermand this right in the event of an important reason, particularly in the case of delayed payment, suspension of payment, opening of an insolvency procedure, questioning of a bill or in the event of any other similar founded facts, that give reason for the suspicion that the orderer will not be able to pay. Moreover, in these cases we can disclose the assignment of accounts receivable, realize the ceded debts, and demand the disclosure of the assignment of accounts receivable by the orderer. The orderer is obliged to give us the necessary information and to supply us with the relevant documents that we need to enforce our rights from the assignment.
  10. The orderer must notify us immediately about any attachments, confiscations or any other instructions or interference of third parties.
  11. In the case of culpable breach of the contractual obligations, especially in the case of delayed payment, we may take repossession of the goods on commission after expiry of a reasonable period of grace. The orderer is obliged to hand us over the goods. The fact that we take repossession of the goods, enforce the property reservation or pledge the goods on
  12. commission does not mean that we withdraw from the contract unless this is explicitly declared. We are, after previously giving a warning, authorized to satisfy our open claims by utilizing the repossessed goods on commission.

VIII. Defects

  1. Minor or customary property deviations do not constitute a quality defect.
  2. We will not take over any warranties for the maintainability or condition of the ordered goods. This also applies when samples and patterns have been submitted, reference to technical norms has been made or when we have advised the orderer beyond the scope of delivery.
  3. Complaints must be made without delay and must include an exact description of the delivery. In the case of hidden defects, the complaint must be made immediately after the defect is noticed. It is not possible to claim for defects that have been queried late.
  4. In the case of a reasonable complaint in due time, we will replace the goods. Should we fail to do so, the orderer can choose to either demand a reduction in price (redhibition) or withdraw from the contract.
  5. The customer cannot claim any further defects of the delivery against us and our vicarious agents. This does not affect the claims of our customers arising from par. IX. (liability).
  6. Any warranty claims are subject to a period of limitation of one year from delivery of the goods. This does not apply to the statutory periods of limitation for claims that the orderer can make due to defects in construction and construction materials and the recourse of the orderer.

IX. Liability

Damages claims and compensation for expenditure of the orderer, no matter on what legal grounds, especially due to contractual breach of duty and unlawful acts are not possible. This does not apply if we are legally obliged to assume liability, according to the Produkthaftungsgesetz (product guarantee law) and in the case of the orderer’s recourse, in cases of intent or gross negligence, injury of life, body or health, for warranty promises or the breach of essential contractual duties. However, the indemnification for the breach of 4essential contractual duties is restricted to predictable contract-typical damages unless intent or gross negligence are concerned. The aforementioned regulations do not affect the burden of proof to the disadvantage of the customer

X. Others

  1. The German language is the exclusive contract language for these general terms and conditions. Only the German text of the General Terms and Conditions will be binding for the interpretation of the contract.
  2. These terms replace any other agreements that the contractual partners have made either orally or in writing. These become invalid upon signature of these terms.

XI. Applicable law, Arbitration Clause

  1. Only German law shall apply. The United Nations Agreement of 11 April 1980 regarding contracts about the national purchase of goods (CSIG) is not applicable.
  2. Any disputes arising from this contract will be finally decided by an arbitration board in Freising disbarring legal actions. The authorized version of the currently valid arbitration procedure rules of the International Chamber of Commerce in Paris shall be taken as a basis for the arbitration procedure. The arbitration board is constituted by an arbitrator, nominated by the competent Chamber of Industry and Commerce for Freising who is binding for all parties. The negotiation language is German.