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I. Scope of the Terms and Conditions of Sale
The following terms and conditions shall apply to all of our sales, deliveries and services. General Business Terms of the customer will not become a part of the contract, even if we do not explicitly object hereto once again in an individual case. The following terms and conditions shall also apply if we carry out the delivery to the customer without reservation in the knowledge of contradictory terms and conditions of the customer or those which deviate from our terms and conditions.
II. Written form
All agreements, which are reached with the customer concerning the execution of the contract, are recorded in writing in the following terms and conditions, the offer and/or order confirmation. Other agreements require a written form in order to be legally valid or must at least have been confirmed by us in writing. This shall also relate to changes to the written form clause itself.
III. Conclusion of the contract
The contract shall be concluded with the receipt of our written order confirmation (acceptance) by the customer whereby a confirmation in a text form (e-mail) or a fax notification is sufficient.
Our deliveries shall be carried out at the costs and risk of the customer “FCA”. We shall have satisfied our delivery obligation with the submission for transport.
V. Delivery deadlines, delay in delivery, non-satisfaction
1. Insofar as declarations of the customer are required according to the law for the occurrence of consequences due to default, such are only legally effective in a written form Claims from delay in delivery or non-satisfaction are to be asserted against us by the customer in writing within two weeks from the existence of the pre-requisite.
2. The compliance with our delivery obligation further presumes the timely and proper satisfaction of the obligation of the customer. The right of objection of the nonfulfilled contract is reserved.
3. If the customer is in default of acceptance or if it culpably breaches other obligations to provide assistance we are entitled to accordingly request compensation for the damages suffered by us, including possible additional expenses. Further claims or rights remain reserved.
4. Insofar as the pre-requisites of Par. (3) exist the risk of accidental loss or accidental deterioration to the purchased object shall pass to the customer at the time at which it is in default of acceptance or as debtor.
5. We shall further be liable according to the statutory provisions insofar as the delay in delivery is a result of a wilful or grossly negligence breach of contract, for which we are responsible; a fault of our representatives or vicarious agents is to be attributed to us. Insofar as the delay in delivery was due to a grossly negligent breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damages.
6. We shall also be liable according to the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of an essential contractual obligation; in this case however the liability for damages is limited to the foreseeable, typically occurring damages.,
VI. Risk to claims
1. In case of a substantial deterioration to the assets of the customer, through which our claims are in danger, or if it is determined that bankruptcy proceedings were opened over the assets of the customer or were rejected return unsatisfied in the last three years before conclusion of the contract, or that the customer has submitted an affidivat or that a warrant of arrest has been issued in this respect or if the customer is in default towards us with a payment owing to a total of three other ones than the contractual delivery or service we are entitled to set the customer a reasonable deadline in writing for the advance payment or provision of collateral by a guarantee of a German bank. If the customer does not satisfy this request within the deadline we are entitled to cancel the contract by written declaration. In the event of the cancellation based on the risk to claims the customer is obliged to pay the agreed price whereby we must have offset against us that which was saved in costs and expenses by the non-fulfilment.
2. Further statutory claims remain unaffected.
1. The applicable rate of value added tax is not included in our prices; it will be disclosed separately in the invoice in the applicable rate on the day of the invoicing.
2. Insofar as prices have not been explicitly agreed, our list prices shall apply at the time of the order.
3. If our deliveries or services are carried out later than four months after the conclusion of the contract for reasons, for which the customer is responsible (delay in acceptance, missing assistance, breach of an essential secondary obligation, among others) then we are entitled to request our list prices, which are applicable at the time of the delivery, instead of the agreed prices. The prerequisite for this is however that we have set a reasonable deadline for the acceptance or simultaneously threatened the change in prices.
4. The same shall apply if our deliveries or services as agreed have to be carried out later than four months after the conclusion of the contract, afterwards however a substantial delay in our deliveries or services occurs for reasons for which the customer is responsible.
1. The purchase price is due and payable net without deduction within 30 days from the invoice date. Deemed as the day of the payment is the day upon which the payment was received by us or on one of our accounts.
2. If we grant cash discount, the customer is only entitled to use this if no further due payments are outstanding.
3. We are entitled to revoke deferrals and the granting of instalments if the pre-requisites according to Clause VI. of our Terms of Sale (Risk to claims) have occurred or if the customer is in default with an instalment in full or in part for longer than two weeks.
4. The customer can only offset against such claims which are undisputed or have been declared final and binding or which are based upon the same contractual relationship and ensued from an undisputed request for payment in kind (e.g. entitlement to subsequent improvement or substitute delivery).
5. In the event of the default of payment incoming amounts will initially be offset against the interest, then against the costs and then against the respective oldest principal claim. In addition the statutory provisions shall apply to the occurrence of the default and the consequences of default.
IX. Assumption of risk
1. If we only have to make a delivery the risk of the accidental loss or the accidental deterioration to the object of delivery shall pass to the customer as soon as the object of delivery is available for the transport “ex works”.
2. If we also have to install or mount the object of delivery the risk shall pass to the customer with the acceptance.
3. If the shipment of the object of delivery, the installation or assembly or acceptance is delayed at the customer’s request or for other reasons for which it is responsible then the risk shall pass to the customer with the expiry of the contractually agreed delivery date or the envisaged acceptance date.
X. Reservation of title
1. The delivered objects shall remain our property until the full payment of all claims, to which we are entitled owing to the delivery and assembly.
2. An extended reservation of title shall further apply, according to which the property to the delivered object shall pass when all claims stemming from the business relationship have been paid to us. The customer may sell the objects of delivery in the proper business operation, however only against cash payment or reservation of title. It is not entitled to make other disposals, in particular either to assign the objects as collateral or as a pledge. The customer hereby now already assigns all of its claims from the resale of the object of delivery including all secondary rights to us until the full redemption of our claims. We hereby accept the assignment on our part. In the event of the resale, further processing or connection of the created objects, to which we are entitled to a statutory co-ownership right, the assignment shall be deemed as carried out in the amount of the value of our co-ownership share. The same shall apply in the event that the objects of delivery are sold by the customer together with other goods not belonging to us at a total purchase price. A part of the purchase price shall also be deemed as assigned to us, which corresponds with the value of our delivery and service. For the event that the customer’s claim is included in a current account, the balance shall be assigned to us in the total amount of our claims, with precedence over the other part of the balance. The customer is entitled to collect the claim for us in trust.
3. If the customer is in default with the payment of our claims in full or in part for longer than two weeks or if the pre-requisites exist according to Clause VI. of our Terms of Sale we are entitled:
a) to revoke the collection authorization and to disclose the assignment to the debtors. The customer undertakes to provide us with all information which is necessary for the collection of the claim as well as hand over all documents to us (including possible bills of exchange).
b) to request the hand-over as well as the return of the objects of delivery, insofar as these are still in the possession of the customer. The customer has to send us a list of the still available objects of delivery and to enable us the access to these at all times. The customer hereby now already agrees that we can access its business premises in order to collect the objects of delivery owned by us. All costs, associated with the collection of the claim against the third party or with the taking back of the object of delivery, shall be borne by the customer.
c) The value of the objects of delivery which were taken back will be credited to the customer. For this purpose we are entitled to sell the object of delivery, which was taken back, by free hand. The sales proceeds minus the costs of the sale shall correspond with the credit note which is to be granted. The sale by free hand is to be reported to the customer two weeks in advance in writing. The customer can avoid this by payment or provision of a bank guarantee in the amount of our claim from the contractual relationship plus the accrued costs.
d) Should the value of all collateral rights, to which we are entitled according to the aforementioned provisions, exceed the amount of the secured claims by more than 10 %, we are obliged to release a corresponding part of the collateral rights at the request of the customer.
1. Claims for defects of the customer presume that it has properly satisfied its responsibilities for inspection and report of a defect owed according to § 377 HGB [German Commercial Code].
2. We shall remedy defects to our deliveries or services – at our choice – by subsequent improvement (the place of performance of the subsequent improvement is Dresden) or substitute delivery. In the event of the remedy of defects or the substitute delivery we are obliged to bear all expenses, which are necessary for the purpose of subsequent satisfaction, in particular transport, route, labour and material costs, insofar as these do not increase by the fact that the object of purchase was taken to another location than the place of satisfaction. In the event of the subsequent satisfaction we shall only bear necessary expenses up to the amount of the purchase price.
3. If we are in default with the remedy of the defect, the customer is entitled to set us a reasonable deadline with the declaration that it will reject the remedy of defects after the expiry of the deadline. The setting of a deadline and threat of rejection require a written form. The subsequent improvement shall be deemed as failed if three subsequent improvements carried out by us could not remedy the defect. If a new defect is determined within the warranty deadline after the successful subsequent improvement we shall also be entitled to at least three attempts at subsequent improvement in this respect.
4. Insofar as the remedy of the defect is not possible by substitute delivery or subsequent improvement the customer’s right to reduction or to cancel the contract shall exist. The cancellation is excluded if the impairment to the value or the usability of the object of delivery is only insignificant.
5. If the customer asserts claims for damages then, except in the cases that we are responsible for the defect by wilful or grossly negligent breach of duty, these are limited to the damages, which are usually to be expected.
6. The warranty period is one year from the passing of risk.
XII. Joint and several liability
1. A further liability for damages than envisaged in Clause XI, is – irrespective of the legal character of the asserted claim – excluded. This shall in particular apply to claims for damages from the fault upon conclusion of the contract, owing to other breaches of duty or owing to claims in tort for the compensation for property damages according to § 823 BGB [German Civil Code].
2. The limitation according to Par. (1) shall also apply insofar as the customer request the reimbursement of useless expenses instead of a claim to compensation for the damages instead of the performance.
3. Insofar as the liability for damages is excluded or limited towards us this shall also apply with regard to the personal liability for damages of our employees, workers, representatives and vicarious agents.
XIII. Applicable law, place of jurisdiction
The place of jurisdiction for all disputes from or in connection with the contractual relationship is Dresden. Instead we are also entitled to file an action at that court in the district of which the customer has its registered seat. The applicable German law under the exclusion of the UN Convention on the International Sale of Goods is to be applied to the contractual relationship.
XIV. Other provisions
Should individual provisions of the contract feature loopholes or be invalid this shall have no effect on the validity of the contract on the whole. A regulation is to be included in the contract to replace the invalid or faulty provision, which shall as far as possible correspond with the sense and purpose of the contract. Insofar as the contract is translated in international business transactions, in case of dispute the German version shall be decisive include the General Business Terms written in German.