ESM Ennepetaler Schneid- und Mähtechnik GmbH & Co. KG
Köner Str. 29
D 58256 Ennepetal

General Conditions of Purchase


§ 1 General Terms, Scope

  1. The following General Conditions of Purchase (in German: AEB) apply to all business relations with our customers (hereinafter referred to as "Seller"). The General Conditions of Purchase are valid only if the Seller is an entrepreneur (§ 14 BGB (German Civil Code)), a legal entity governed by public law, or a special fund under public law.
  2. The General Conditions of Purchase apply in particular to contracts for the sale and/or supply of movable objects (hereinafter also: "goods"), irrespective of whether the Seller produces the commodities himself or purchases them from suppliers (§§ 433, 651 BGB). These General Conditions of Purchase shall also apply in their respective version as a framework agreement for future contracts pertaining to the sale and/or supply of movables with the same Seller, without any requirement on our part to repeat reference to them in each individual case; the Seller will be always be informed immediately of any changes to our General Conditions of Purchase.
  3. Our Terms and Conditions shall apply exclusively. Other contrasting, contradicting or supplementing Terms and Conditions as set out by the Seller will not form part of the contract unless explicitly approved of by us. This requirement of consent applies in any event, for example even if we, being aware of the Seller's deviating Terms and Conditions, execute delivery to the Seller without reservation.
  4. Individual agreements made on a case by case basis with the Seller (including side agreements, additions and amendments), shall always have precedence over these General Conditions of Purchase. A written contract or our written confirmation is decisive for the content of such agreements.
  5. Legally relevant declarations and notifications, which are to be submitted to us by the Seller after conclusion of contract (e.g. setting of deadlines, reminders, declaration of cancellation), need to be made in writing in order to be valid.
  6. References to the validity of statutory regulations shall only have clarifying significance. The statutory regulations shall therefore also apply without such a clarification insofar as they are not directly amended or expressly excluded in these General Conditions of Purchase.

§ 2 Conclusion of Contract

  1. Our order becomes binding at the earliest with the written order or written confirmation. The seller must draw attention to obvious errors (e.g. typing and calculation errors) and any incompleteness in the purchase order including the purchase order documents for the purposes of correction and/or completion; the contract shall otherwise be regarded as not concluded.
  2. The Seller is obliged to confirm our order within 5 working days in writing or execute it without any reservation. A belated acceptance shall be deemed to be a new offer and requires confirmation by us.

§ 3 Delivery Time, Delay in Delivery

  1. The delivery time as stated in the order is binding. If the Seller anticipates that he will not be able to meet the agreed delivery time – irrespective of the reasons – he is obliged to inform us immediately in writing.
  2. In the event that the seller is not able to provide his service or not provide his service within the agreed delivery time, or is in default, our rights – particularly as regards cancellation and compensation - shall be determined according to the respective legal regulations. The provisions in paragraph 3 remain unaffected hereby.
  3. Should the Seller be in default, then we are entitled – aside from further reaching legal claims - to claim a lump sum compensation for damage caused by default in the amount of 1% of the net price for each full calender week of delay, but in any case no more than a total of 5% of the delivery value of the delayed delivered goods. We reserve the right to prove that we have incurred damages of a higher cost than the aforementioned sum. The Seller is entitled to prove that we have suffered no loss at all, or only a substantially smaller loss than the aforementioned sum.

§ 4 Delivery, Transfer of Risk, Default of Acceptance

  1. The Seller is not entitled to arrange for third parties (e.g. subcontractor) to carry out a service performance owed by him without our prior written consent. The Seller shall bear the procurement risk for its services, unless otherwise agreed upon on an individual basis (e.g. sale of goods in stock).
  2. Delivery shall be made within Germany “INCOTERMS: DAP – “designated location” (“Geliefert bennanter Ort”) to the location stated in the order. In the event that no point of destination is stated and no other agreement has been reached, delivery is to be made to our head office in Ennepetal. The place of destination is also the place of performance (“Bringschuld”).
  3. A delivery note stating the date (issue and dispatch), content of the delivery (article number and article amount) as well as purchase order identifier (date and number) must be enclosed in the delivery. If a delivery note is lacking, or if the delivery note contains incomplete or incorrect information, then we cannot be held responsible for any resulting delays in processing and payment. In addition, a separate dispatch note must be sent with the same content as is contained in the delivery note.
  4. The risk of accidental loss and accidental deterioration of the goods shall pass over to us at the handover at the place of performance. Insofar as an acceptance procedure has been agreed upon, this shall be decisive for the passing of risk. In all other respects the statutory provisions governing contracts for work and services (“Werkvertragsrecht”) shall apply. Default of acceptance by us shall be equivalent to delivery or acceptance.
  5. In the occurrence of a default of acceptance on our part the statutory provisions shall apply. The Seller must, however, expressly offer performance if an act or a contribution by us (e.g. provision of material) carries a a specific or definable calendar date. In the event that we are in delay of acceptance then the Seller is entitled, in accordance with legal requirements, to claim payment of additional expenditures (§ 304 BGB (German Civil Code)). In case of contracts concerning the manufacture of single items (custom-made products) by the Seller, the Seller shall only be entitled to further-reaching rights if we were obliged to provide assistance and were responsible for the failure to provide the assistance.

§ 5 Prices, Terms of Payment

  1. The price stated in the order is binding. All prices include VAT at the statutory rate unless otherwise stated.
  2. Unless otherwise agreed, the price shall include all of the Seller's services and ancillary services (e.g. assembly, installation) as well as all additional expenses (e.g. proper packaging, transport costs including transport and third-party liability insurance,). The Seller must take back the packaging material upon our demand.
  3. The agreed price shall be due for payment within 30 calendar days of complete delivery and performance (including the acceptance inspection, if one is agreed) and receipt of a due and proper invoice. If payment is made by us within 14 calendar days, the Seller shall grant us a 3% discount (“Skonto”) on the net invoiced amount. In case of bank order our payment obligation is punctually adhered to if our transfer order is transmitted to our bank within the terms stated; We are not to be held responsible for any delays caused by the banks involved in the payment transaction.
  4. We do not owe interest on arrears. The interest for arrears is annually 5 percentage points above the base lending rate. The occurrence of a delay of delivery on our part is specified according to the statutory provisions, whereby in case of deviance, a written reminder would in any case be required.
  5. The rights of offsetting and retention, as well as the plea of non-performance or incomplete performance of the contract, shall remain possible for us in their entirety, in accordance with statutory rights. In particular, we are permitted to hold back due payments, insofar as and for as long as we are still entitled to claims arising from faulty or incomplete deliveries.
  6. The Seller is entitled to offsetting and retention rights only on account of legally established or undisputed counter-claims.

§ 6 Nondisclosure, Reservation of Title

  1. We reserve all property rights and copyrights on illustrations, plans, drawings, calculations, executive instructions, product descriptions and other documents. Documents of this kind are to be used exclusively for the contractual performance and shall be returned to us after contract completion. This obligation is extended to all co-workers, contractors, subcontractors, vicarious agents of the Seller who come into contact with the information as described in §6, regardless of the type and legal framework of the cooperation. Insofar as not already enforced, the Seller is obliged to enforce the appropriate nondisclosure obligations on the aforementioned persons. These agreements are to be made in such a way as to ensure that nondisclosure is enforced even after termination of the contractual relationship. Only by way of explicit, written and in advance permission may persons be released from this confidentiality agreement. The aforementioned documents may not be disclosed to third parties during the contract or after termination thereof. The obligation of confidentiality expires only if and insofar as the information concerned has become publicly known.
  2. The aforementioned provision applies to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates, samples and other items that we provide to the seller for production. Items of this kind are to be stored separately at the seller’s expense – insofar as they are not being processed – and insured to the normal amount against destruction and loss.
  3. Processing, mixing or combining (processing) by the Seller of provided items shall be carried out for us. The same goes for a further processing of the delivered goods by ourselves, so that we are deemed the manufacturer and, at the latest upon further processing, assume ownership of the product in accordance with legal regulations.
  4. The assignment of the goods to us is to take place unconditionally and regardless of whether the purchase price has been paid. Should we in an individual case accept an offer dependent on full payment for the transfer of ownership, in this case the reservation of title of the Seller becomes void at the latest with the full payment of the delivered goods. We shall however be entitled to sell the delivered goods even before full payment of the goods within the scope of normal business practices, under assignment in advance of any resulting claims (alternative application of simple, and in case of resale, extended reservation of title). In any case this excludes any other forms of reservation of title, especially the extended, forwarded or for further processing extended reservation of title.

§ 7 Bad Delivery

  1. For our rights in case of defects with regards to quality and title of goods (including wrong delivery and short delivery, as well as incorrect assembly and inadequate assembly and operating instructions) and in case of other breaches of duty by the Seller, the statutory provisions apply unless otherwise stated.
  2. According to the statutory provisions the Seller is liable in particular for the goods having the agreed quality at the moment of the transfer of risk. In any case, the product descriptions that are the subject matter of the respective contract or are incorporated into the contract in the same way as these General Conditions of Purchase - in particular by identification or reference in our order - shall be valid as an agreement on the properties and condition, whereby it is immaterial whether the product description originates from us, from the Seller or from the manufacturer.
  3. Notwithstanding §442 para. 1 page 2 BGB (German Civil Code), we shall also be entitled to unrestricted warranty claims if the defect remains unknown to us upon conclusion of contract as a result of gross negligence.
  4. With respect to the commercial duty to examine and requirement to give notice of defects, the respective legal regulations will apply (§§ 377, 381 HGB (German Commercial Code)) with the following provision: Our duty to examine is limited to defects which are identifiable through our incoming goods inspection, through examination of the exterior, including the delivery papers as well as through our random quality control (e.g. transport damages, wrong delivery and shortfall in delivery). No examination is required if an acceptance procedure has been agreed on. Otherwise, it is dependent on what can be expected of an inspection under the circumstances of the individual case, according to normal business practices. Our obligation to give notice of defects discovered at a later point in time remains unaffected. In any event, our complaint (notice of defects) is considered prompt and timely if the complaint reaches the Seller within 15 working days.
  5. The costs spent by the Seller for the purposes of testing and rectification (including any costs of fitting and removal) shall be borne by the Seller even if it transpires that there was in fact no defect. Our liability to pay damages in the case of unjustified demands concerning notices of defects shall remain unaffected; We are insofar liable, however, if we did, or by gross negligence did not, realize that no defect was present.
  6. If the Seller does not honor his obligation to supplementary performance - either by remedying the defect (Subsequent Improvement) or by delivery of an item which is free from defects (Replacement Delivery) – within a reasonable time period as set out by us, we have the right to remedy the defect ourselves and demand from the Seller compensation for the expenses incurred or an appropriate advance payment. If the supplementary performance by the Seller should fail or otherwise be unreasonable for us to accept (e.g. on account of special urgency, an operating safety hazard or imminent danger of the occurrence of disproportionate damages) no deadline needs to be set; in such a case the Seller is to be notified immediately, if possible in advance, by us.
  7. Aside from this, we are entitled to demand reduction of the purchase price or withdrawal from the contract in the case of defects of quality and title in accordance with respective legal regulations. Moreover, in accordance with legal regulations, we shall be entitled to a claim to compensation for damages and reimbursement of expenses.

§ 8 Supplier Recourse

  1. In addition to the warranty claims, we shall have unrestricted entitlement to our legally determined rights of recourse within a supply chain (Supplier Recourse §§ 478, 479 BGB (German Civil Code)). In particular, we shall be entitled to demand exactly the type of supplementary performance from the seller (subsequent improvement or replacement delivery) that we owe to our buyer in the individual case. Our legal option (§439 para. 1 BGB) is not restricted by this.
  2. Before we recognize or satisfy a warranty claim asserted by our buyer (including reimbursement of expenses according to §§ 478 para. 3, 439 para. 2 BGB), we will inform the Seller, provide a short explanation of the facts and request a written statement. In the event that the statement is not provided within a reasonable time-limit and an amicable solution is not reached, the warranty claim we actually conceded shall be regarded as owed to our buyer; in this case the Seller is responsible for supplying counter-evidence.
  3. Our claims for supplier recourse also apply if the goods were not delivered to a consumer until after alteration or subsequent processing (for example installation into another product) by us or one of our customers.

§ 9 Producer Liability

  1. Where the Seller is responsible for damage to a product, he shall be obliged to release us at first request in this respect from third party claims, insofar as the cause lies within his area of control and organization and that he is himself liable in relation to third parties.
  2. Within the framework of his indemnity obligation the Seller is required to reimburse expenses in accordance with §§ 683, 670 BGB that arise from or in connection with a claim by third parties, including product recalls that we have carried out. Insofar as this is possible and reasonable, we shall inform the Seller regarding contents and extent of product recalls and give him the opportunity to comment. Legal claims in excess of this shall remain unaffected.
  3. The Seller is obliged to take out and maintain a product liability insurance policy.

§ 10 Limitation

  1. The reciprocal claims of the contractual parties become time-barred according to statutory regulation unless otherwise stated.
  2. Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims for defects is three years from delivery. Insofar as an acceptance has been agreed, the limitation period shall begin with the acceptance. The three-year limitation period shall also apply for claims arising out of defects in title (Rechtsmängel), whereby the statutory limitation period for the material claims for the restitution of property by third parties (§ 438 Abs. 1 no. 1 BGB) remains unaffected. Moreover, claims on the grounds of legal defects are not statute-barred as long as long as the third party can assert the right against us - in particular in the absence of limitation.
  3. The applicable limitation periods under the law governing the sale of goods, including the above extension, shall apply to all contractual claims for defects. If we are also entitled to non-contractual claims for damages for a defect, the regular statutory limitation period applies (§§ 195, 199 BGB), unless the application of the specific limitation periods under the law governing the sale of goods leads to a longer limitation period in the individual case.

§ 11 Applicable Law and Place of Jurisdiction

  1. The law of the Federal Republic of Germany shall apply to these General Conditions of Purchase and to all legal relations between us and the Seller to the exclusion of all international and supranational (contractual) legal regulations, in particular the UN Convention on the International Sale of Goods. The pre-requisites and effects of the reservation of title are subject to the law of the respective storage location of the subject matter, insofar as this states that the choice of German legislation is inadmissible or ineffective.
  2. Where the Seller is a merchant (“Kaufmann”) in the sense of the HGB (German Commercial Code), a legal entity in German public law or a special fund under public law, the exclusive – international – legal venue for all disputes arising directly or indirectly from the contractual relationship shall be the courts at our place of business in Ennepetal. However, we are also entitled to file a suit with the court at the customer‘s place of general jurisdiction.

General Terms and Conditions of Sale

 

§ 1 General Terms, Scope

  1. The following General Terms and Conditions of Sale (in German: “AVB”) apply to all business relations with our customers (hereinafter referred to as "Buyer"). The General Terms and Conditions of Sale are valid only if the Buyer is an entrepreneur (§ 14 BGB (German Civil Code)), a legal entity governed by public law, or a special fund under public law.
  2. The General Terms and conditions of Sale apply in particular to contracts for the sale and/or supply of movable objects (hereinafter also: "goods"), irrespective of whether we produce the commodities ourselves or purchase them from suppliers (§§ 433, 651 BGB). The General Terms and Conditions of Sale shall also apply in its respective version as a framework agreement for future contracts pertaining to the sale and/or supply of movables with the same Buyer, without any requirement on our part to repeat reference to them in each individual case; the Buyer will be always be informed immediately of any changes to the General Terms and Conditions of Sale.
  3. Our Terms and Conditions shall apply exclusively. Other contrasting, contradicting or supplementing General Terms and Conditions of Sale as set out by the Buyer will not form part of the contract unless explicitly approved of by us. This requirement of consent applies in any event, for example even if we, being aware of the Buyer's deviating General Terms and Conditions of Sale, execute delivery to the Buyer without reservation.
  4. Individual agreements with the buyer, made on a case by case basis (including side agreements, additions and amendments), always have precedence over these General Terms and Conditions of Sale. A written contract or our written confirmation is decisive for the content of such agreements.
  5. Legally relevant declarations and notifications which are to be submitted to us by the Buyer after conclusion of contract (e.g. setting of deadlines, notifications of defects, cancellation or reduction of payment), need to be made in writing in order to be valid.
  6. References to the validity of statutory regulations shall only have clarifying significance. The statutory regulations therefore shall also apply without such a clarification insofar as they are not directly amended or expressly excluded in these General Terms and Conditions of Sale.

§ 2 Conclusion of Contact

  1. Our offers are non-binding and subject to change. This also applies if we have provided the Buyer with catalogues, technical documents (e.g. drawings, plans, calculations, cost estimates and references to DIN standards), other product specifications or documents – including in electronic form – to which we reserve the right of property and copyright.
  2. The order of goods by the buyer is considered a binding offer of contract.Unless otherwise stated in the order, we shall be entitled to accept this offer within 1 week of its receipt.
  3. The acceptance can be made either in writing (e.g. by confirmation of order) or by distribution of the commodity to the Buyer. Acceptance may be declared either in writing (e.g. by confirmation of the order) or through the supply of goods to the Buyer .

§ 3 Delivery Deadline, Delay in Delivery

  1. The delivery deadline will be individually agreed upon or indicated by us upon receipt of the order.
  2. Should we be unable to meet binding delivery dates for any reason for which we cannot be held responsible (non-availability of the goods or services), we will inform the Buyer without undue delay and at the same time inform the Buyer of the new probable delivery date. Should the specified goods or services not be available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; in this case we will immediately refund any payments already made by the Buyer. The non-availability of goods or services in the aforementioned sense is in particular the late delivery of components by our component suppliers, if we have concluded a matching cover transaction, if neither us nor our suppliers can be held responsible for the delay, or if, in individual cases, we are not responsible for the procurement.
  3. The occurrence of a delay in delivery is determined in accordance with legal provisions. In any case, however, a reminder by the Buyer is necessary. Should a delay in delivery occur, the customer is entitled to claim a lump sum compensation for damage caused by default. The lump-sum compensation shall be 0.5% of the net price (value of the delivery) for each full calendar week of delay, but in any case no more than a total of 5% of the delivery value of the delayed delivered goods. We reserve the right to prove that the Buyer has suffered no loss at all or only a substantially smaller loss than the aforementioned lump sum.
  4. The rights of the Buyer in accordance with § 8 of the General Terms and Conditions of Sale and our statutory rights, especially in the case of exclusion of performance obligation (e.g. performance and/or supplementary performance becomes impossible or unreasonable), remain unaffected.

§ 4 Delivery, passing of risk, acceptance, delay in acceptance

  1. The delivery is carried out ex works, where the place of performance is also respectively located. The International Commercial Terms (incoterms) apply in this context in their respective relevant version. At the request and cost of the Buyer the goods may be sent to another place of destination (contract of sale involving the carriage of goods). Insofar as not otherwise agreed we are entitled to determine the mode of shipment (in particular transport company, route of shipment, packaging) ourselves.
  2. The risk of accidental loss and accidental deterioration of the goods shall pass over to the Buyer at the handover. However, in the case of a contract of sale involving the carriage of goods, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall pass to the Buyer as soon as the goods have been delivered to the carrier, the freight forwarder or the other person or institution chosen to carry out the shipment. The regulations governing contracts of sale involving the carriage of goods in §5 para. 2 apply here additionally. Insofar as an acceptance procedure has been agreed upon, this shall be decisive for the passing of risk. The statutory provisions on contracts for services shall apply analogously in other respects to an agreed acceptance. Default of acceptance by the Buyer shall be equivalent to delivery or acceptance.
  3. If the Buyer is in default of acceptance, if he fails to provide an act of assistance or should our delivery be delayed for other reasons for which the Buyer is responsible, then we are entitled to request compensation for the thus arising damages, including additional expenses (e.g. storage costs). For this we shall charge the Buyer the cost of storage, in case of storage in the Seller's factory however we shall be entitled to charge at least 0.5% of the total invoice amount for each month, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment. The proof of higher damages and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the fixed rate is however to be offset against further monetary claims. The Buyer reserves the right to prove that no, or only substantially less than the aforementioned sum in damages were suffered.
  4. A cancellation of the delivery by the Buyer can only be carried out with our consent. In the event of such a cancellation we will charge the Buyer a cancellation fee of 15% of the net product value. For any kind of custom product we must insist on an unlimited acceptance obligation. If a return of goods is agreed upon, then the condition for taking them back is the complete reusability of materials; in particular, there may be no lasting soiling or damage. In this case the retraction wil take place without monetary compensation for the Buyer.

§ 5 Prices, Terms of Payment

  1. Unless otherwise agreed in individual cases, prices current at the time of contract conclusion will apply ex warehouse, plus VAT at the statutory rate.
  2. In the case of a contract of sale involving the carriage of goods (§4 para. 1) the Buyer shall be responsible for transport costs ex factory, and for the costs of transport insurance should this be requested. Any customs duties, fees, taxes and other public charges are equally the responsible of the Buyer. Transport packaging and all other packaging in accordance with the Packaging Ordinance is non-returnable and becomes the Buyer's property, with the exception of pallets.
  3. The purchase price is due and payable within 10 days of invoicing and delivery (or acceptance) of the goods.
  4. The Buyer will be in default with the expiry of the aforementioned payment deadline. Interest is to be paid on the purchase price at the respective applicable rate of default interest during the period of delay. We reserve the right to assert any further damages from default. Our entitlement to commercial maturity interest (§ 353 HGB German Commercial Code) against merchants remains unaffected.
  5. The Buyer is only entitled to set-off or to exercise any rights of lien or retention insofar that its entitlement has been determined final and binding or is undisputed. In case of delivery defects the buyer's counter-rights, particularly those in accordance with § 7 para. 6 no. 2 of these General Terms and Conditions of Sale remain unaffected.
  6. If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through the inability of the Buyer to pay, then we are entitled, in accordance with statutory regulations, to refuse service and – if necessary after setting a deadline – to cancel the contract (§ 321 BGB (civil code)). In case of contracts concerning the manufacture of single items (custom-made products) we may declare cancellation immediately; the statutory regulations on the dispensability of setting deadlines remain unaffected.

§ 6 Reservation of Title

  1. We reserve the right of ownership of sold goods until the full payment of all of our current and future claims from the contract of sale and the current business relationship (secured claims).
  2. The goods subject to reservation of ownership may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The Buyer must inform us immediately in writing if and insofar as any access by third parties to the goods in our possession should occur.
  3. In case of conduct by the Buyer which is in breach of the contract, in particular non-payment of the due purchase price, we are entitled to cancel the contract according to the statutory regulations and/or to request that the goods are handed over on the grounds of the reserved right of ownership. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, we shall be entitled to solely demand the return of the goods and reserve the right to cancellation. If the Buyer does not pay the due purchase price we may claim such rights only if we have first unsuccessfully set the Buyer a reasonable deadline for payment or if the setting of such a deadline is deemed unnecessary in accordance with the respective statutory provisions.
  4. The Buyer is authorized to resell and/or to process goods that are under reservation of title within accepted business practices. In this case the following provisions shall apply in addition.
    1. The reservation of title covers products resulting from the processing, mixing or combination of our goods in their full amount whereby we are deemed the manufacturer. If the ownership right of third parties continues to exist as a result of processing, mixing or combination with goods of third parties, then we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. The same shall also apply to the produced product as to the goods delivered under reservation of title.
    2. The Buyer hereby now already assigns, by way of security, the claims against third parties arising from the resale of the goods or products equal to the amount of our approximate share of joint ownership pursuant to the aforementioned paragraph. We hereby accept this assignment. The obligations of the Buyer as mentioned in paragraph two also apply in view of the assigned claims.
    3. The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets its payment obligations towards us, is not in default of payment, insofar as no application has been filed for the opening of insolvency proceedings, and insofar as there is no other deficiency in its ability to pay. Should this however be the case, we can request that the Buyer informs us of the assigned claims and the Buyer's debtors, provides all information necessary for the collection, hands over all relevant documents and informs the debtors (third parties) of the assignment.
    4. If the realizable value of the securities at our disposal exceeds our secured claims by more than 10 %, we shall, upon request by the Buyer, release securities chosen by us to this extent.

§ 7 Claims for Defects of the Buyer

  1. The statutory regulations shall apply to the Buyer's rights in case of defects of quality and title (including false delivery and shortfall in delivery as well as improper assembly or faulty assembly instructions) insofar as not otherwise determined below. In any case, the special provisions on final delivery of goods to a consumer (supplier recourse §§ 478,479 BGB (German Civil Code)) shall remain unaffected at any time.
  2. Our liability for defects is based primarily on the agreement entered into with regard to the condition of the goods. Agreements as to the condition of the goods include any product descriptions which were made part of the individual contract; it makes no difference whether the aforementioned product descriptions come from the Buyer, the Manufacturer, or from us.
  3. Insofar as no agreement was made with regard to the condition, the question as to whether or not a defect exists will be determined in accordance with the statutory provisions (§434 para. 1 sentence 2 and 3 BGB). We shall not however be liable for any public statements made by the manufacturer or any other third parties (e.g. marketing statements).
  4. The Buyer’s claims for defects presuppose that it has satisfied its statutory obligations for inspection and reporting of complaints (§§ 377, 381 HGB (German Commerce Code). If a defect is determined during the inspection or subsequently then this is to be reported to us immediately in writing. The report is deemed to have been made immediately if it is made within two weeks, whereby the timely dispatch of the report is sufficient in order to comply with the deadline. Irrespective of this obligation for inspection and reporting of complaints, the Buyer must report obvious defects (including false and shortfall in delivery) within two week of delivery in writing, whereby the timely despatch of the report is also sufficient here in order to meet the deadline. If the Buyer fails to carry out the proper inspection and/or reporting of defects, our liability for the defect which was not reported shall be excluded.
  5. If the delivered object is faulty, we can initially choose whether to provide supplementary performance by remedying the defect (subsequent improvement) or by delivery of a faultless product (replacement delivery). Our right to refuse the chosen type of supplementary performance under the statutory requirements remains unaffected.
  6. We are entitled to make the owed supplementary performance dependent on the Buyer paying the due purchase price. The Buyer is however entitled to retain a part of the purchase price which is reasonable in relation to the defect.
  7. The Buyer must give us the time and opportunity necessary to carry out the owed supplementary performance, in particular to hand over the goods for which a complaint was made for purposes of inspection. In the event of a substitute delivery the Buyer must return the faulty object to us in accordance with the statutory regulations.The supplementary performance does not include the upgrade of the faulty object, nor a reinstallation of the object insofar as we were not originally obliged to do so.
  8. The expenses which are necessary for the purpose of inspection and supplementary performance, in particular costs for transport, route, work and material, shall be borne by us if there is actually a defect. However, if it is determined that a request for remedy of a defect by the Buyer is unjustified, we can request reimbursement of the costs incurred hereby from the Buyer.
  9. Only in urgent cases, for example if the safety of operations is at stake, or in order to avoid disproportional amage, does the Buyer have the right to carry out the defect repairs himself and to demand compensation for expenses objectively necessary for this. We are to be informed about these activities as soon as possible, if possible prior to the repair. The right to self-action does not exist if, according to statutory regulations, we would have been entitled to refuse supplementary performance.
  10. If the supplementary performance has failed or a reasonable deadline as set by the Buyer for the supplementary performance has expired unsuccessfully or is unnecessary according to statutory regulations, the Buyer may cancel the purchase contract or reduce the purchase price. This right of withdrawal does however not exist in case of an insignificant defect.
  11. Claims of the Buyer for damages or reimbursement of fruitless expenses only exist in accordance with §8 and are otherwise excluded.

§ 8 Other Liability

  1. Unless otherwise stated in these General Terms and Conditions of Sale, including the following provisions, we shall be liable in case of a breach of contractual and non-contractual duties, in accordance with the relevant statutory regulations.
  2. We shall be liable for damages – no matter on what legal grounds – in case of willful intent and gross negligence. In case of simple negligence we shall only be liable
    1. for damages from the injury to life, the body or the health,
    2. for damages from the breach of an essential contractual duty (obligation that is of the essence, i.e. its exact performance is so central to the purposes of the contract that the other contract party customarily relies – and is entitled to rely – on its fulfillment); in this case our liability is however limited to compensation for foreseeable typical damage.
  3. The liability restrictions which can be derived from paragraph 2 shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods. The same shall apply to claims of the Buyer according to the German Product Liability Act.
  4. The Buyer can only cancel or terminate the contract in case of a breach of a duty other than a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (particularly in accordance with §§ 651, 649 BGB (German Civil Code)) is excluded. Apart from this, the statutory regulations and legal consequences shall apply.

§ 9 Limitation

  1. Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for warranty claims from defects of quality and title is one year from delivery. Insofar as an acceptance has been agreed the limitation period shall begin with the acceptance.
  2. This shall not affect special statutory provisions for the restitution of material goods of third parties (§ 438 Para. 1 No. 1 BGB), willful deceit on part of the seller (§ 438 para. 3 BGB) as well as claims in the supplier's recourse on final delivery to a consumer (§470 BGB).
  3. The aforementioned limitation periods shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the goods, unless the application of the regular legal statute-of-limitations (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. The limitation period of the German Product Liability Law shall remain unaffected in any case. Otherwise the legal limitation periods shall apply exclusively to claims for damages of the Buyer in accordance with § 8.

§ 10 Applicable Law and Place of Jurisdiction

  1. The law of the Federal Republic of Germany shall apply to these General Terms and Conditions of Sale and to all legal relations between us and the Buyer to the exclusion of all international and supranational (contractual) legal regulations, in particular the UN Convention on the International Sale of Goods. The pre-requisites and effects of the reservation of title according to § 6 are subject to the law of the respective storage location of the subject matter, insofar as this states that the choice of German legislation is inadmissible or ineffective.
  2. Where the Buyer is a merchant (“Kaufmann”) in the sense of the HGB (German Commercial Code), a legal entity in German public law or a special fund under public law, the exclusive – international – legal venue for all disputes arising directly or indirectly from the contractual relationship shall be the courts at our place of business in Ennepetal. However, we are also entitled to file a suit with the court at the customer‘s place of general jurisdiction.

 

Ennepetal, February, 2012