Terms and Conditions

Terms of Sale, Delivery and Payment

§ 1
General - Scope of application

  1. As a matter of principle, the terms and conditions of sale, delivery and payment set forth shall be part of our written order confirmation and shall be binding for all and any contract made between us and a third party.
  2. Our terms of sale, delivery, and payment shall apply exclusively. We shall not recognize contrary terms or such terms of sale, delivery and payment containing diverging conditions established by the ordering party unless we give our express and written approval. Our terms of sale, delivery, and payment shall also apply if we fulfill such deliveries in the knowledge of such contrary or diverging terms of sale, delivery, and payment of the ordering party.
  3. The contract shall rule all and any agreements made between us and the ordering party in order to fulfill the mutual contractual obligations.
  4. Our terms and conditions of sale, delivery, and payment shall only apply with respect to entrepreneurs as per § 310, paragraph. 4 BGB (German Civil Code).


§ 2
Offers - Offer documentation

  1. All of our offers shall be non-binding. The contract shall be considered to be concluded as soon as - after having received a corresponding order and, as the case may be, within in a certain period established by the ordering party - we have either issued a written declaration of acceptance (e. g. an order confirmation) or performed a full or partial delivery. The omission to respond to an order shall not be deemed as a declaration of acceptance.
  2. Oral or written statements or agreements made prior to the conclusion of the contract shall only become part of the contract if they have been agreed on in writing prior to concluding the contract.
  3. We shall retain rights of ownership and copyrights in respect of calculations and other documents. The aforesaid shall also apply to such written and "confidential" documentation. The ordering party may not forward such documentation to third parties without our express written approval.


§ 3
Prices - Terms of Payment

  1. Provided no other statements have been made in the order confirmation, our prices shall be "ex works" including packing.
  2. Our prices shall not include the statutory value-added tax, the statutory amount of which shall be invoiced separately on the day the invoice is issued.
  3. A discount shall require a separate written agreement. Agreed discounts can only be granted if there are no elder outstanding invoices.
  4. Provided no other agreements have been made in the order confirmation, the purchase price shall be payable net (without discount) within 30 days of date of invoice. Delayed payments shall be subject to interests of 8% above the current basic interest rate established by the German Federal Bank.
  5. The ordering party shall only be entitled to make use of the right to set-off amounts if its counter claims are determined by final judicial decision, non-disputed, or otherwise recognized by us.
  6. We shall retain the right to determine from case to case whether or not we take in bills and cheques. The ordering party shall bear all bill charges or discount expenses as well as all other fees caused by the honouring of a bill or a cheque. To take in a cheque or a bill does not mean that respite for payment is granted but that a claim cannot be enforced for an interim period of time. Secondly, bills and cheques shall only be deemed as payments after they have been cashed or honoured, as the case may be. All discounts and fees shall be payable immediately.
  7. If the ordering party delays a payment or if after delivery circumstances come to our notion which give us reasonable right to assume that the ordering party `s financial situation is supposed to deteriorate, we shall be entitled either to retain deliveries arising out of other existing contracts or to claim anticipated payments for outstanding deliveries. If the ordering party fails to anticipate payments, we shall be entitled to withdraw from the contract immediately whereupon all outstanding invoices and bills shall become payable immediately.
  8. Place of performance for the payment of the purchase shall be our company bank. Performance shall be considered to be made as soon as the amount to be paid has been balanced to our account. Provided no other written agreements have been made, the ordering party shall bear all bank charges not accruing in Germany and charges for letters of credits even if they accrue in Germany.
  9. Changes in the prices shall be admitted if more than four months have elapsed between the day of conclusion of the contract and the agreed delivery date. If wages, costs of material or the cost prices customary on the market should increase in the meantime, we shall be entitled to increase the price in accordance with the general cost increases. The ordering party may only withdraw from the contract if the increase in price substantially exceeds the normal increase of the general costs of living between the date of order and the date of delivery.


§ 4
Delivery - Delivery Period

  1. The delivery period stated by us shall only commence after all technical issues have been clarified.
  2. The timely and appropriate fulfillment of the ordering party `s contractual obligations is a further prerequisite for us to meet our obligation to deliver. In this respect, we shall retain the right to claim non-fulfillment of contract.
  3. The date of delivery shall be shown on the order confirmation. Delivery periods shall commence on the day the order confirmation has been posted, however, not before documentation, permissions, or releases to be obtained by the ordering party have been presented and an agreed retainer payment has been received.
  4. In the case of measures conducted due to events like labour actions, in particular strike and lock-out, or due to unpredictable obstacles beyond our control, such as discontinuation of operations, delayed supply of essential materials or events representing Force Majeure, the delivery periods and the delivery date shall be prolonged for the duration of the existence of the aforesaid events. The same applies if those circumstances happen to our suppliers or transport carriers. The aforementioned circumstances shall be considered to be beyond our control even if they occur during an already ascertained delay. In important cases, we shall undertake to notify the ordering party of the beginning and the end of such obstacles as soon as possible.
  5. If the ordering party delays in accepting delivery or if he otherwise and culpably fails to perform his obligation to collaborate, we shall be entitled to claim compensation for the damages incurred including potential additional expenses. We shall also retain the right to any further claims.
  6. To the extent the prerequisites set forth in chapter 5 of these conditions apply, the risk of a coincidental loss of the goods or the coincidental deterioration of the goods shall pass to the ordering party at the time when he delays to accept or to tender delivery.
  7. Delivery periods respectively delivery date shall be considered to be met if note of shipment has been made or the delivered object has left the factory within the delivery peiod.
  8. Partial delivery shall be admissible within the delivery periods and date mentioned by us if their later usage is not impaired by such partial deliveries.


§ 5
Transfer of Risk - packaging, shipment

  1. Provided nothing to the contrary has been agreed n writing in the order confirmation, delivery shall be made "ex works".
  2. Except for pallets, transport packaging and all other kinds of packaging in accordance with the packaging regulations shall not be taken back. The ordering party obliges to arrange for the disposal of the packaging and to bear the costs for it.
  3. Upon the ordering party ´s request, we shall insure the shipment by a transport insurance, the costs of which shall be borne by the ordering party.
  4. Provided no other terms have been expressly agreed, postage shall be invoiced separately.
  5. Provided no other terms have been expressly agreed, the risk shall pass to the ordering party as soon as the shipment has been handed over to the person in charge of transport or as soon as it has left the company's premises. The aforesaid also applies if transport is handled by our staff.
  6. Delivery shall be deemed to be fulfilled as soon as the goods have been shipped to the point of destination or in case we were not able to ship the goods due to the ordering party 's breach of duty and therefore had to put the goods in storage. The ordering party shall bear the costs for warehousing as well as all other costs arising out of the ordering party 's breach of duty.
  7. The ordering party shall also bear the risk of transport from a warehouse as under the aforesaid chapter 6 of these conditions.


§ 6
Reservation of ownership

 

  1. In order to secure our claims, the goods shall remain our property until all payments arising out of present and future business transactions between the parties hereto have been settled. In the case of a current account, reservation of ownership shall secure our account balance.
  2. In the case of the ordering party committing breach of contract, particularly in the case of delayed payment, we shall be entitled to take back the goods. By taking back the goods, we shall not be deemed to have withdrawn from the contract unless we expressly declare to have done so in writing. However, a seizure of the gods effected by us shall at all times be deemed a withdrawal from the contract. After having taken back the goods, we shall be entitled to exploit the goods whereby the proceeds of the exploitation shall be set off against the ordering party `s liabilities after deduction of the appropriate costs of exploitation.
  3. The ordering party shall be obliged to handle the goods with due care, in particular, he shall be obliged to insure the goods against damages caused by fire, water, or theft to the usual extent i. e. the replacement value and to bear the costs for the insurance.
  4. In case of a seizure or the otherwise intervention of third parties, the ordering party shall have to notify us immediately and in writing so that we can file an action in accordance with s. 771 of the German code of civil procedure. If the third party involved is uncapable of reimbursing such judicial and extra-judicial fees of an action in accordance with s. 771 of the German code of civil procedure, the ordering party shall be liable for the loss incurred.
  5. The ordering party shall be entitled to sell the goods in the course of his normal business operations, however, he shall have to assign all of his claims to the extent of the total invoiced value (including VAT) of our claims towards him which may arise to his benefit out of his sales to his purchasers or third parties, regardless of whether such goods have been sold after having been processed or without prior processing. The ordering party shall be entitled to collect such receivables even after such claims have been assigned. The aforesaid does not affet our right to collect claims ourselves. However, we oblige not to collect such receivables as long as the ordering party meets his obligations of payment arising out of such collected receivables, does not delay payment and, in particular, no application for insolveny proceedings has been filed and no payments are suspended. However, if one of the aforementioned situations occur, we shall be entitled to demand that the ordering party discloses all of his assigned receivables as well as the corresponding debtors, makes available all information as may be necessary in order to collect such debts, including corresponding documentation, and that he informs debtors (or, as the case may be, third parties) about the assigment of such receivables.
  6. The ordering party shall always process or restructure the goods on our behalf. If the goods are processed along with other goods not owned by us, we shall hereby acquire a partial ownership in the new goods in the ratio of the value of the goods (Total invoiced value including VAT) compared to the value of the other processed goods at the time of processing. The same applies to the new goods arising out of the processed good and those goods delivered subject to a reservation of ownership.
  7. If the goods are mixed unseparably with other objects not owned by us, we shall acquire a partial ownership in such goods in the ratio of the value of the objcts (invoiced total value including VAT) compared to the value of the other mixed objects at the time of mixing. If the goods are mixed in a way that the ordering party ´s goods shall have to be considered as the main objects it is agreed that the ordering party assigns a co-ownership in the appropriate ratio. The ordering party shall thus safeguard his newly created exclusive ownership respectively our co-ownership.
  8. Upon the ordering party ´s request, we shall oblige to release the securities we are entitled to to the extent that the exploitable value of our securities exceeds the receivables to be secured by more than 20%, whereby we may select the securities to be released at our own discretion.


§ 7
Liability for defects

  1. The ordering party may only raise claims due to defects if he has duly fulfilled his duty to give notice of the defects and to verify the defects. Complaints notified orally or on the phone shall require our written consent in order to become valid.
  2. To the extent that goods are defect, we may optionally choose to remove the defect or to deliver new goods free of defects. In the case defects being removed, we shall be obliged to bear all costs necessary to remove the defect, in particular the costs of transport, freight, labour, and material costs unless those costs are increased because the goods have been shipped to a place other than the place of performance.
  3. After unsuccessful subsequent performance, the ordering party may optionally choose either to withdraw from the contract or to claim reduction.
  4. We shall be liable according to the statutory rules provided the ordering party claims damages caused by intentional behaviour or gross negligence including intentional behaviour or gross negligence of one of our representatives or vicarious agents. Unless we are charged intentional breach of contract, liability shall be limited to the predictable, usual amount of damage.
  5. Liability due to culpable damage to life, body or health of persons shall remain unaffected. The same applies to the mandatory liability in accordance with the law on product liability.
  6. Except for the aforesaid diverging agreements, liability shall be excluded.
  7. Provided no other written agreements have been made, the expiry period for claims due to defects shall be twelve months starting on the day the risk is transferred.
  8. Damage claims due to consequential damages, even by offerring remedy for the defect, shall be excluded, even as far as they can be ascribed to a fault committed by a vicarious agent or representatives.
  9. We shall not assume any liability for defects occuring during the sale of used goods.
  10. Goods rejected by the ordering party shall only be sent back to us upon our express approval. Diverging from the terms contained under chapter 2, the ordering party shall bear the costs incurred by claiming our assistenace if a rejection proves to be unjustified.


§ 8
Overall Liability

  1. Any further liability for compensation not ruled under s. 7 of these conditions shall be excluded regardless of the legal nature of the raised claim. The aforesaid is especially true for damage claims due to culpable behaviour at the time of conclusion of the contract, in the case of other breaches of duty or tortious claims for replacement due to material damages in accordance with § 823 of the BGB (German civil code).
  2. To the extent that our liability for damages is excluded or limited, the aforesaid shall also apply to our employees, staff, representatives, and vicarious agents.


§ 9
Concluding provisions

  1. Place of performance for all parties is Breitungen. Place of jurisdiction is the court competent for us.
  2. The German law shall apply exclusively subject exclusion of the laws on the international sale of goods, even if the ordering party has its legal company domicile abroad.
  3. The transfer of right and obligations of the ordering party arising from the contract concluded with us, shall only be valid with our written consent.
  4. Should a provision be or become null and void, the validity of the other provisions shall remain unaffected.

Status: January, 2015

© Leuchtstoffwerk Breitungen GmbH / A Company of Treibacher Group