Formation of Contract
Any of our deliveries and services shall be governed exclusively by the terms and conditions set forth herein, even if not explicitly referred to by us for our future deliveries and services or if the customer uses other terms and conditions whether printed or otherwise. Any such other conditions do not apply unless confirmed by us in writing.
1. Reservation of Title
a) The goods and any related documents shall remain our sole property until the complete satisfaction and discharge of any and all of our present and future claims and receivables from our business relationship with the customer.
b) The customer undertakes to mark and store the goods owned by us separately (goods subject to reservation).
c) We shall become owners of the new products in case the customer processes, converts or transforms the goods subject to our reservation or permits any of the foregoing, without incurring thereby any liability or any obligation. In case the customer combines, mixes, blends, commingles or processes the goods subject to reservation with other goods owned by third parties or transforms them with other goods owned by third parties we shall acquire and be entitled to co-ownership of the new goods produced in the proportion to the contributing values of the goods subject to reservation and the value of the other goods previously owned by third parties. To that extent the new goods are considered goods subject to reservation for the purposes of these terms and conditions.
d) A sale of the goods subject to reservation is only permitted in the ordinary course of business. Any other dispositions, in particular pledging or chattel mortgaging of the goods subject to reservation are not permitted, and the customer shall not allow any lien or encumbrances. Any claims or receivables arising to the customer in connection with the goods subject to reservation due to resale or other disposal or for other reasons are hereby fully assigned to us in advance by the customer. In the case of co-ownership, the assignment does only apply to the share of the claim or receivable corresponding to our co-ownership. An onward sale or other disposal is only permitted if the assignment to us and our other rights are maintained and not negatively affected hereby.
e) The customer is only authorized to collect the claims and receivables assigned to us in the ordinary course of business and subject to revocation by us at any time. On our request, he shall inform his debtors of the assignment in the proper form. In addition, the customer grants us an irrevocable power of attorney so that we are likewise entitled and authorized to do so at any time.
f) The customer’s authorization to dispose of, to process, to transform, to combine, to mix, and to blend the goods subject to reservation, and to collect the claims and receivables assigned, shall terminate ipso jure upon his non-compliance with the terms of payment, in the case of unauthorized disposals or of any protest in connection with cheques, bills or letters of exchange or default on any other payment obligation or if he commits an act of bankruptcy or if insolvency proceedings are instituted against the customer or if a substantial deterioration of the customer’s financial situation becomes apparent or known to us. In such cases we shall be entitled to take possession of the goods subject to reservation immediately, for this purpose to enter the customer’s premises and to obtain all information reasonably required by us on the goods subject to reservation and, if applicable, on claims or receivables which have arisen or may result from their resale or other disposition as well as to inspect the customer’s records, if this serves to secure our rights. Acceptance of the goods, receivables or respective claims involves a rescission of the contract only if this is explicitly stated by us.
g) Should the value of the collateral or security given to us or retained by us hereunder exceed the value of our claims, rights and receivables as a whole by more than 20%, we shall release upon customer’s request an appropriate amount of any such surplus security of collateral.
2. Prices, Terms of Payment
a) Any value added tax applicable at the date of delivery has to be added to our prices.
b) Should any increases of import duties, taxes, levies, freights, etc. occur from the conclusion of the contract to the date of delivery we reserve the right to adjust our prices accordingly.
c) The customer shall not be entitled to retain, withhold or offset payments due to any counterclaims or other purported rights including, but not limited to claims arising from product guarantees, unless and to the extent any such counter-claims or rights are acknowledged by us or established by non-appealable court decision.
d) The purchaser is in delay if he has not paid the purchase price in full 7 calendar days after receipt of bill and/or delivery (according to which is relevant). In case of late payment, the purchaser has to pay interest of 1% per month of the overdue amount plus VAT-tax from the due date; the right to the assertion of further claims to damage remains reserved.
e) If circumstances become known to us after conclusion of contract giving rise to serious doubts regarding the customer’s solvency respectively his reputation of being worth for credit, we are entitled to declare due all our claims from the existing business relationship disregarding all periods agreed for payment. In this case we are furthermore entitled to refuse any further supply of the customer with our goods, even under contractual obligation, unless he prepays the full price of such deliveries or the customer supplies us with securities or bails to our satisfaction. In case the customer does not meet our demands for prepayment or securities within an adequate period we may at our own discretion claim for damages or cancel the contract with regard to any future deliveries.
f) Bills of exchange and checks are accepted only on account of performance; they are valid as payment if they are unconditionally redeemed. Bank-usual expenses are at the cost of the orderer.
g) As far as nothing other has been arranged, the place of payment is the main office of the vendor. As a significant contract condition, it is valid as arranged that the customer makes payments in the currency that is stipulated in the contract (contract currency). The obligation of the customer to make payments in the contract currency is not fulfilled or satisfied in the case where the vendor receives payment in a currency other than the contract currency, where appropriate, a payment of the customer with regard to a judgment issued or enforcement, as long as and insofar as the payments in this other currency lead to the receipt of the amount to be paid in the contract currency.
3. Delivery and Delay
a) Delivery periods or delivery dates shall be deemed to be approximate only.
b) We shall be entitled to defer and/or to cancel our delivery commitment in case of force majeure, e.g. - strike, lockout; - other interruptions of the fabrication of any kind or any difficulties occurring in the provision of fabricated materials and operating supplies as far as those events are incurring after conclusion of the contract with the customer, furthermore any difficulties in the shipment or transportation of the goods, - unless those events are caused intentionally or by gross negligence by us, our corporate bodies, directors or officers entrusted with special tasks, - non-delivery or incorrect delivery by our suppliers to ourselves, - or any other events beyond our reasonable control. In case that such event of force majeure continues for a longer period of time without us exercising our right to cancel our delivery commitment the customer upon the elapse of a reasonable period of time shall have the remedy at the exclusion of any other or further rights, claims or remedies to cancel the quantities affected.
c) Even if a fixed delivery period or date have been agreed upon the customer shall afford us a reasonable period of grace for delivery. After the elapse of such period the customer shall be entitled to terminate the contract with respect to any overdue quantity, which had not been declared ready for shipment. Any other or further rights or remedies in connection with our delay are excluded unless in the case of an act of intent or an act of gross negligence by us, our corporate bodies, directors or officers entrusted with special tasks. At any rate claims for damages shall be limited to the foreseeable damage. Damages exceeding the double value of the affected quantity not delivered or not delivered in time are excluded. In case the customer believes higher damages exceeding the limit mentioned above may result a compensation for such higher damage shall require an express arrangement.
d) Quantity information is always regarded as an approximation. Safety-technical and filling related deviations of 10% +/- are valid as contract-appropriate. Such variances of quantity are correspondingly considered in the bills, with reductions or increases.
4. Passing of Risk
Unless agreed upon to the contrary, deliveries shall be effected ex warehouse. In the event that special conditions or procedures as to acceptance of delivery are agreed upon, the customer shall carry out the same at the place of delivery at his own expense. In the case the customer does not notify seller of any claims when accepting the goods or if the customer fails to accept the goods, the goods shall be considered to be delivered according to the contract at the time risk passes. Any risk shall pass to the customer upon the notice of readiness for shipment, and at the latest at the time the goods leave the place of delivery. This shall also apply in case we arrange the transportation of the goods or pay the freight.
5. Partial Shipments
We shall be entitled to carry out part shipments or part performance, respectively. The loss, delay or defectiveness, if any, relating to part shipments shall not entitle the customer to any rights with regard to any remaining or outstanding shipments.
6. Measures, Weights and Quantities of Delivery
Measures and weights mentioned in our offers and in our confirmations of sales are approximate only. The measures, weights and quantities indicated in our delivery notes shall govern for invoicing and settlement. Claims regarding measure, weight or quantity of delivery are to be made in writing within 14 days after arrival of the goods at the place of destination at the latest.
7. Guarantee Rights
a) We are liable for re-hibitory defects in our selection of subsequent fulfillment (improvement repair or replacement delivery) or purchase price reduction, if the following prerequisites are met:
- The orderer has to examine the goods and their packaging immediately on delivery. If the goods are supplied in dispatch items, then he has to additionally check the labeling of every individual dispatch item for agreement with the order. In addition, he has to convince himself of the contract-appropriate composition of the goods through sampling before the transfer of the goods.
- In case of deficiencies determined in the checking investigation, he has to complain to the orderer immediately, i.e. at the latest within 3 working days in writing.
- If the orderer refrains from the immediate checking investigation or if he does not complain about a determined or detectable deficiency immediately, the goods are valid as being approved. The same applies in case of an erroneous delivery and also with such a considerable deviation that an authorization of the goods through the orderer would have to be excluded.
- In case of a hidden deficiency, the orderer has to complain immediately after its discovery. Otherwise the goods also apply as being approved in this respect. Liability for hidden deficiencies will also be excluded 12 months after delivery.
b) If the customer does not make available immediately any samples of the goods complained about on request, all deficiency claims are cancelled. Regardless of any former statutory limitation, the deficiency claim is struck by the statue of limitations after rejection of the customer’s complaint.
c) We are liable for re-hibitory defects on claims for damages or replacement of unsuccessful expenditures according to the instructions included in the following § 8
8. Liability for damages
a) We are liable for damages which arise from deficiencies in the purchased object, erroneous delivery of deficiencies in the packaging of objects of legal protection of the orderer, including his assets, as follows - Provided that damages could have been avoided through compliance with the checking obligations, every liability for our part is excluded, unless the damage can be attributed to the deliberate behavior of our representative. - Provided that damage has arisen in spite of compliance with the checking obligation of the orderer, we are liable only for deliberate and grossly negligent contract violations.
b) We vouch for any damage other than as regulated above – regardless of the grounds for liability, such as impermissible handling or contractual obligation infringements – only when it has been caused through a deliberate action or grossly-negligent handling for our part or by one of our performance assistants. We are not liable – regardless of whatever reasons – for any damages or unforeseeable damages or loss of profit resulting from defects.
c) We are not liable for the suitability of any goods for the objectives intended by the orderer, unless the intended objective has become a part of the contract in writing. As far as we provide advice, information or give recommendations and so forth in an application technical sense, we are liable only for grossly negligent, incorrect consultation, information or recommendations given in writing.
d) Deficiency claims are struck by the statue of limitations after 12 months. The above liability limitations apply also to the benefit of our employees and executive bodies.
e) The above limitations also apply for non-contractual claims, however not for damages arising from injuries to life, limb body or health.
9. Infringement of Third Parties’ Rights
In the event goods for deliveries to the customer are fabricated or transformed or mixed or blended according to plans, drawings, models, or other instructions of the customer, and third parties’ rights, in particular rights arising out of patents and other protective rights are infringed by such fabrication or manipulation of the goods to be delivered, the customer has to indemnify us and hold us harmless against such third parties’ claims on our first request.
10. Consultation and Information
Brochures, drawings, leaflets and so forth handed over by us and the data included therein e.g. concerning weight, analyses and composition do not represent a guarantee in the sense of §443 BGB and are authoritative only in the case where we explicitly designate it as binding in writing.
Provided that one or several of the stipulations of these conditions are ineffective or unrealizable, the effectiveness of the remaining conditions and the contract are not affected through that. The parties will replace ineffective or unrealizable conditions by effective conditions, which correspond most effectively to the intended objective of ineffective or unrealizable conditions. Communications in connection with the contract can be implemented through fax or e-mail. Changes and extensions of the contract require the written form and the signature of both parties.
12. Place of Performance, Jurisdiction and Venue, Governing Law
Place of performance for the customer’s obligation to pay is London, United Kingdom, and for our obligation the place the delivery of which is effected. Jurisdiction and venue for any disputes arising in connection with this agreement shall be London, United Kingdom . This does also apply to claims basing on cheques or bills of exchange. Any and all legal relationships between the customer and us shall exclusively be governed by the laws of the United Kingdom, excluding the collision law and the Uniform Law on the Formation of Contracts for the International Sale of Goods.