Terms
and Conditions for Delivery and Payment (valid since: October 22, 2003)
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The
following terms and conditions for delivery and payment shall govern
all deliveries and services. Any conflicting purchasing terms and
conditions of the Customer are hereby expressly rejected. Any such
purchasing terms and conditions shall apply only if we expressly
confirm them in writing. Acceptance of the delivered goods shall be
deemed acknowledgement of our terms and conditions.
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| 1. |
Prices/Terms
and Conditions of Payment |
| 1.1 |
We calculate the
applicable prices on the date of delivery, such prices being in EURO
(EUR) unless otherwise stipulated, plus an additional amount for VAT
as applicable from time to time. Unless special terms are agreed, the
prices should be understood to be prices ex works, with no deduction
or discount being granted for immediate payment. |
| 1.2 |
If payment deadlines are
not met, this will automatically give rise to all of the statutory
consequences of default, without any special reminder being required.
In particular, we reserve the right to charge interest at the
applicable rate charged by our bank if such interest exceeds the
interest rate prescribed by statute (8% above the reference interest
rate). Furthermore, the entire balance shall become due and payable
immediately, irrespective of any payment targets. |
| 1.3 |
In the case of
custom-made products, we reserve the right to increase the price by a
reasonable amount and to deviate to a reasonable extent from the
agreed quantity. The Customer must take delivery of surplus
quantities. In respect of pressed pieces (Preßlinge) and glass
feed-through headers (Glasdurchführungen), a variation of +/-10% in
relation to the ordered quantity shall be deemed agreed.
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| 2. |
Delivery
Dates |
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We will endeavour to
adhere to stipulated delivery deadlines. However, due to the hazards
and peculiar features of glass processing, delivery deadlines will not
be binding unless expressly agreed otherwise. Our contractual
obligations are subject to our supplier delivering the correct
products to us on time.
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| 3. |
Place of Performance
and Passing of Risk |
| 3.1 |
The place of performance
for the delivery is the principal place of business of our respective
supplying factory. The place of performance for payment is our
principal place of business. |
| 3.2 |
When goods are
transported, the risk (of accidental loss, destruction or
deterioration) (the "Risk") shall pass to the Customer as soon as we
have delivered the goods to the carrier chosen by us.
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| 4. |
Packaging |
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Unless otherwise agreed,
we will accept the return of packaging to the extent that we are
obliged to do so under the German Packaging Regulation
(Verpackungsverordnung).
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| 5. |
Warranties in Respect
of Material Defects and Notification of Defects |
| 5.1 |
If, despite the greatest
of care being taken, the goods give rise to complaints, then, in
accordance with §377 of the German Commercial Code (Handelsgesetzbuch,
or "HGB"), obvious defects must be notified without delay, in any case
no later than 14 days after receipt of the goods, and hidden defects
must be notified without delay after their discovery, otherwise the
goods shall be deemed accepted. |
| 5.2 |
Claims on the basis of
defects as to quality ("material defects") shall become statute-barred
12 months after delivery of our goods to our Customer. The foregoing
provisions shall not apply to the extent that longer limitation
periods are prescribed by statute pursuant to §438(1) No. 2 of the
German Civil Code (Bürgerliches Gesetzbuch, or "BGB" - Physical
Structures and Physical Objects used for Physical Structures), §479
(1) BGB (Recourse Claim), and §634a (1) BGB (Construction Defects).
Our consent must be obtained before any goods are returned.
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| 5.3 |
If, despite all care
being taken at our premises, the delivered goods contain a defect that
already existed at the time that the Risk passed, then we will, at our
election and subject to receiving notification of the defect within
the required time, repair the goods or deliver substitute goods. We
must always be given the opportunity to render subsequent performance
within a reasonable time. |
| 5.4 |
If subsequent performance
cannot be rendered, the Customer may – notwithstanding any claims for
compensatory damages – rescind the agreement or reduce the contractual
fee. The Customer may not demand compensation for expenses incurred in
vain. |
| 5.5 |
The following shall not
give rise to any claims based on defects: merely immaterial deviations
from the agreed condition of the goods, merely immaterial impairments
to their utility, natural wear and tear, or loss or damage that arises
after the Risk has passed as a result of incorrect or careless
treatment, overuse, unsuitable operating resources, defective building
work, unsuitable building foundations or special external influences
that are not requirements under the contract. In addition, if the
Customer or a third party improperly (in a non-workmanlike manner)
carries out maintenance work or modifications, then no claims based on
defects may be made in respect of such work or modifications or the
resulting consequences. |
| 5.6 |
Claims on the part of the
Customer for expenses necessary to enable subsequent performance,
particularly transport, infrastructure (e.g., tolls) and labour costs
and the cost of materials, are excluded to the extent that such
expenses are higher because the goods delivered by us were
subsequently taken to a location other than the Customer's business
premises, unless such transportation is consistent with the authorised
use of the goods. |
| 5.7 |
Any recourse claims on
the part of the Customer against us shall exist only to the extent
that the Customer has not entered into any agreements with its
customers going beyond the mandatory statutory claims based on
defects. Item 5.6 shall apply mutatis mutandis to the scope of the
Customer's recourse claim against the supplier. |
| 5.8 |
Claims based on material
defects on the part of the Customer against us or our vicarious agents
that go beyond or are not included in the claims governed by Item 5
are excluded. |
| 5.9 |
The provisions of Item 7
shall otherwise apply to any other claims on the part of the Customer
for compensatory damages or the reimbursement of costs. |
| 5.10 |
If, a defect is
fraudulently concealed or a warranty in the sense of § 443 BGB is
given (seller's representation that the subject matter of the sale has
a particular characteristic at the time the Risk passes and that the
seller wishes to be held responsible for all consequences flowing from
the fact that the characteristic is absent, regardless of fault) with
respect to the condition of the goods as at the time the Risk passes,
the Customer's rights shall be exclusively governed by the statutory
provisions.
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| 6. |
Industrial Property
Rights and Copyright; Title Defects |
| 6.1 |
Unless otherwise agreed,
we have an obligation (although such obligation exists only in the
country in which the place of delivery is located) to deliver the
goods free from the industrial property rights and copyrights of third
parties (hereinafter referred to as "Proprietary Rights"). In the
event that a third party makes legitimate claims against the Customer
for infringement of Proprietary Rights based on the goods delivered by
the supplier and used in accordance with the contract, we shall be
liable to the Customer within the period specified in Item 5.1 above
as follows:
| a) |
At our
election and at our own expense, we will either secure a licence for
the goods concerned, modify them so that the Proprietary Right is not
infringed, or exchange them. If we are unable to do any of the above
on reasonable terms, then the Customer shall be entitled to the
statutory rights of rescission and reduction of the contract price.
The Customer may not demand compensation for expenses incurred in
vain. |
| b) |
The
provisions of Item 7 shall apply to any claims for compensatory
damages. |
| c) |
Our
obligations as described above shall exist only on the condition that
the Customer notifies us in writing without delay of the claims
asserted by the third party, the Customer does not admit to the
infringement and leaves in our hands any defence of the claims and
settlement negotiations. If the Customer discontinues using the
delivered goods in order to mitigate loss or for any other good
reason, then the Customer shall bring to the attention of the third
party the fact that discontinuing use of the goods in no way
constitutes an admission of an infringement of Proprietary
Rights. |
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| 6.2 |
Claims on the part of the
Customer are excluded if the Customer is responsible for the
infringement of Proprietary Rights. |
| 6.3 |
Claims on the part of the
Customer shall be further excluded if the infringement of Proprietary
Rights is a result of special instructions issued by the Customer, an
application or use of the goods that was not foreseeable by us, or as
a result of the Customer modifying the goods or using them together
with goods not delivered by us. |
| 6.4 |
In the event of an
infringement of Proprietary Rights, the provisions set forth under
Items 5.3 and 5.7 shall otherwise apply mutatis mutandis to the
Customer's claims governed by Item 6.1a). |
| 6.5 |
If other title defects
exist, then the provisions of Item 5 shall apply mutatis
mutandis. |
| 6.6 |
Claims based on title
defects on the part of the Customer against us or our vicarious agents
that go beyond or are not included in the claims governed by Item 6
are excluded. |
| 6.7 |
If, a defect is
fraudulently concealed or a warranty in the sense of § 443 BGB is
given (seller's representation that the subject matter of the sale has
a particular characteristic at the time the Risk passes and that the
seller wishes to be held responsible for all consequences flowing from
the fact that the characteristic is absent, regardless of fault) with
respect to the condition of the goods as at the time the Risk passes,
the Customer's rights shall be exclusively governed by the statutory
provisions.
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| 7. |
Other Claims for
Compensatory Damages |
| 7.1 |
In the event of a breach
of a pre-contractual, contractual and/or non-contractual obligation,
including unsatisfactory delivery, tortious conduct and manufacturer's
liability, we shall be liable for compensatory damages and the
reimbursement of costs – subject to further contractual or statutory
liability requirements – only in the case of wilful conduct, gross
negligence or breach of a material contractual duty ("condition")
(contractual duty, the infringement of which jeopardises the ultimate
purpose of the contract) where such breach was due to ordinary
negligence. However, except in the case of wilful conduct, our
liability shall be limited to typical contractual loss or damage that
was foreseeable at the time the contract was entered into. The
Customer is not permitted to make a claim for expenses incurred in
vain. |
| 7.2 |
For loss or damage caused
by delay due to ordinary negligence, we shall be liable for up to only
5% of the purchase price agreed with us. |
| 7.3 |
Except in the case of
breach of a condition, liability for ordinary negligence is excluded.
This shall not affect Item 7.2. |
| 7.4 |
The exclusions and
limitations of liability set forth under Items 7.1 to 7.3 shall not
apply in the event that a warranty is given with respect to the
condition of the goods in the sense of § 443 BGB, a defect is
fraudulently concealed, or in the event of injury to life, physical
injury or injury to health, or strict liability under the German
Product Liability Act (Produkthaftungsgesetz).
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| 8. |
Non-binding Nature of
Drawings, Diagrams, Measurements and Weights |
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Drawings, diagrams,
measurements and weights are approximate only, unless they are
expressly stipulated to be binding. The Customer must guarantee that
working drawings (construction diagrams) supplied by it do not
infringe the Proprietary Rights of third parties. The Customer must
hold us harmless in the event that rights of recourse are
asserted.
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| 9. |
Documents |
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Documents supplied by us
may not be copied or made available to third parties, or used for any
purpose other than the agreed purpose.
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| 10. |
Reservation of
Title |
| 10.1 |
We shall retain title to
the goods until all of our claims, including claims arising in the
future, are fully paid. The Customer may process and sell the goods
in accordance with the following conditions:
If the goods are further processed or remodelled by the Customer,
then we shall be deemed the manufacturer within the meaning of §950
BGB and shall acquire title to the intermediate or final products. The
processor shall be merely the custodian.
If the goods subject to the reservation of title ("reserved
goods") are mixed or processed with other property not belonging to
us, then we shall acquire a co-ownership interest in the new item
proportionate to the value of the reserved goods to the other
property.
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| 10.2 |
The goods may be sold
only in the normal and ordinary course of business and only if claims
deriving from their resale are not assigned to third parties
beforehand. The Customer's claims deriving from resale of the goods
shall, upon execution of the purchase agreement between us and the
Customer, be deemed assigned to us to the extent that our goods are
mixed or inter-processed with other property. In such a case, the
assigned claims shall serve as our security only up to the value of
the reserved goods sold in each case. We will not collect on the
assigned claims for as long as the Customer complies with its payment
obligations. However, the Customer has an obligation to disclose to
us the identity of the third party debtor at our request and to notify
such debtor of the assignment. The Customer may collect on the claims
itself unless and until it receives instructions (to the contrary)
from us. The Customer must immediately transfer the amounts collected
by it to the extent that our claims are due. |
| 10.3 |
Pledges or the granting
of security interests in the reserved goods or the assigned claims are
not permitted. The Customer must inform us immediately of any action
by third parties affecting the goods delivered subject to a
reservation of title or the assigned claims. We agree to release the
assigned claims at our election if they exceed the value of our claims
to be secured by more than 20% and are derived from fully paid
goods. |
| 10.4 |
In the event of breach of
duty by the Customer, particularly in the case of default on payment,
we are entitled to rescind the agreement and recover the goods. The
Customer has an obligation to deliver up the goods. It is not
necessary for us to rescind the agreement in order to recover the
goods or enforce a reservation of title. Such actions or any pledge
of the reserved goods by us shall not constitute rescission of the
agreement unless expressly declared by us. |
| 10.5 |
If, in the case of
non-domestic sales, the reservation of title agreed under Item 10 is
not permitted with the same effect as under German law, then we shall
retain title to the goods until payment of all of our claims arising
out of the contractual relationship formed through the sale of the
goods. If the foregoing reservation of title is not permitted with
the same effect as under German law either, but it is permissible to
reserve other rights in respect of the goods, then we are authorised
to exercise all of these rights. The Customer shall cooperate in all
actions we may wish to take in order to protect our ownership interest
or alternative right in the goods.
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| 11. |
Relevant Information
regarding Electronic Commerce |
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In case we use electronic
means for the conclusion of a contract with regard to the supply of
goods or rendering of services (“e-commerce”) in the sense of Sec.
312e of the German Civil Code (Bürgerliches Gesetzbuch) the Customer
waives its rights regarding a) availability and explanation of a
system to recognize and correct input errors before submitting an
order and b) the supply of information regarding (i) the necessary
steps to conclude a contract, (ii) electronic storage of the contract
so concluded and its accessibility to the Customer, (iii) the possible
languages available for contract conclusion.
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| 12. |
Applicable Law and
Judicial Forum |
| 12.1 |
With the exception of
choice of law rules under German private international law and the
provisions of the UN Convention on Contracts for the International
Sale of Goods ("UN-CISG"), the substantive law of the Federal Republic
of Germany shall apply to all legal relationships and transactions
established by this purchase agreement. |
| 12.2 |
The judicial forum for
both parties, including for bill of exchange matters, is our principal
place of business (registered office). If we become the plaintiff in
litigation, then we are also entitled to bring an action in the
jurisdiction of the Customer's principal place of business (registered
office). |
