Terms and Conditions of Sale and Delivery

Effective as of: 2018-01-01 | VA017 Issue 1

1. Scope

The sale of our goods and other services is governed exclusively by the following Terms and Conditions of Sale, even if we have not objected in individual cases to any deviating terms and conditions of purchase provided by the purchaser, which we hereby expressly reject. No later than upon acceptance of our goods or other services, the purchaser shall be deemed to have accepted these Terms and Conditions of Sale without reservation, even in the event of a prior objection. Any deviations from these Terms and Conditions of Sale require our express prior written consent for each individual contract to be effective.

2. Offer

Our offers are subject to change. Samples and specimens are provided for general reference only and are not binding. We reserve the right to deliver quantities that are up to and including ten percent more or less than specified.

3. Prices

The price calculation is based on the price in effect on the date of delivery or performance, plus the applicable statutory value-added tax, unless a different price agreement has been made. Unless otherwise specified, prices are quoted for delivery of goods ex warehouse, including our standard packaging. If carriage-paid delivery has been agreed upon, this means delivery carriage-paid to the customer’s receiving station, excluding handling charges. Any additional costs resulting from a special shipping method requested by the customer (e.g., express delivery, urgent delivery, air freight) shall be borne by the customer.

4. Shipping and Transfer of Risk

Shipment is always at the risk and, unless otherwise agreed, at the expense of the purchaser. Upon delivery of the goods to the carrier—at the latest when the goods leave our factory or warehouse, or, in the case of drop shipments, the factory or warehouse of our supplier—the risk passes to the purchaser, even in the case of CAR, FOB, or CIF transactions. The buyer is obligated to inspect the goods immediately upon delivery to ensure they are complete and free of visible damage, and to notify us of any losses or damage without undue delay.

5. Delivery

The delivery dates listed in our sales forms generally indicate the estimated delivery date, which we will endeavor to meet.

If a delivery deadline expressly agreed upon in writing is not met, the purchaser is entitled to set us a reasonable grace period in writing. If the delivery deadline is not met by the end of the grace period, the purchaser has the right to withdraw from the contract. Delivery is deemed to have been made on time as soon as the goods have left our factory or warehouse—or, as agreed, that of our supplier—before the deadline expires.

Circumstances or events beyond our control that make delivery impossible or unreasonably difficult—such as traffic disruptions, operational disruptions, shortages of raw materials or energy, strikes, or lockouts—shall release us from our delivery obligation for the duration of the hindrance and a reasonable restart period, even if they occur at our suppliers. If the hindrance is not expected to end within a reasonable time, we are entitled to withdraw from the contract in whole or in part without any obligation to make a subsequent delivery. Claims for damages by the purchaser are excluded. If the purchaser refuses delivery even after the expiration of a reasonable grace period, we are entitled—without prejudice to any other claims—to demand a lump-sum payment of up to one-quarter of the purchase price to offset our costs, which shall be credited against any claim for damages, but without the need to provide proof of such damages.

6. Payments

Unless otherwise specified on the invoice, the following terms of payment apply: within 14 days of the invoice date, strictly net without any discount. Payment shall be deemed timely upon receipt of the amount, which must be at our unconditional disposal. If the payment deadline is exceeded or payment is not made in full and on time, the customer shall be in default even without a reminder. Without prejudice to any other claims, we are entitled to charge late payment interest at a rate of 2% per annum above the respective discount rate of the Deutsche Bundesbank, effective from the due date. If the customer is in default of payment or if there are reasonable doubts regarding the customer’s solvency, we are authorized to declare all claims against the customer immediately due and payable and/or to demand security even prior to delivery, to withhold outstanding deliveries under this and other contracts in whole or in part, or to withdraw from the existing contracts. The purchaser may only set off undisputed or legally established claims or exercise a right of retention only with respect to claims arising from the same contractual relationship. If the purchaser is a merchant, the assertion of a right to refuse performance or a right of retention requires our prior written consent.

7. Property Rights

The delivered goods remain our property until the purchase price and all existing or future claims arising from the business relationship with the purchaser have been paid in full. The purchaser is entitled to sell the goods subject to retention of title in the ordinary course of business, provided that he fulfills his contractual obligations to us. The buyer is not permitted to pledge the goods as collateral or transfer ownership as security; the buyer must notify us immediately of any interference by third parties with our property rights. If the buyer fails to fulfill its contractual obligations to us, we are further authorized to demand the return of the goods subject to retention of title; in this regard, the buyer has no right of possession. Upon purchase of the goods subject to retention of title, the purchaser hereby assigns to us the claims arising from their resale against his customers, including all ancillary rights. He remains authorized to collect the claims assigned to us until further notice. The buyer is obligated to inform us, upon request, of the amount of these claims and the names of the third-party debtors. If the goods subject to retention of title are processed, we shall be deemed the manufacturer and shall acquire ownership of the new item, without the buyer deriving any claims from this transfer of title. If the processing is carried out together with other materials, we shall acquire co-ownership of the resulting item in the ratio of the gross invoice value of the goods subject to retention of title to that of the other materials. If, in the event of a combination, mixing, or blending with another item, the latter is to be regarded as the principal item, co-ownership of the item shall pass to us to the extent of the gross invoice value of the goods subject to retention of title. If the value of the security interests transferred to us exceeds our total claims against the customer by more than twenty percent, we are prepared, at the customer’s request, to retransfer the security interests to the customer at any time, at our discretion, to the extent of such excess.

8. Information and Counseling

All oral and written statements regarding the suitability and possible applications of our goods are made to the best of our knowledge. However, they represent only our empirical findings, which generally do not constitute a warranty; they do not give rise to any claims against us. In particular, the purchaser is not relieved of the obligation to verify, through its own testing, that the goods are suitable for the intended use.

9. Warranty

Complaints regarding visible defects, incorrect deliveries, or significant quantity discrepancies must be reported to us in writing immediately, no later than 14 days after delivery of the goods. Hidden defects in the goods must be reported in writing immediately upon discovery, no later than 6 months after delivery of the goods. If the purchaser does not report any defects within this period, the goods shall be deemed to have been accepted as free of defects. In the event of a justified complaint, the purchaser shall be entitled, at our discretion, to free repair or, upon return of the goods, to a replacement delivery. Any shortfalls in quantity will be made up. If the repair or replacement is not successful within a reasonable period of time, the buyer may demand a reduction in the purchase price or, if necessary, rescission of the contract. If the buyer is a merchant, the decision on this matter rests with us. Claims based on the absence of a warranted characteristic may only be asserted if, in a specific case, a particular characteristic for a specific intended use or a specific suitability has been expressly warranted in writing by our management. Otherwise, the risk of use and suitability rests exclusively with the customer. Liability is governed by statutory provisions. However, we shall only assume liability for consequential damages resulting from defects if and to the extent that such damages were the subject of our warranty statement.

10. Damages

Any claims for damages by the purchaser that may arise—regardless of the legal basis—directly or indirectly in connection with the order, delivery, or use of our goods are generally excluded, unless we, our agents, or our representatives caused the damage through gross negligence or willful misconduct. In the event that damage is caused by gross negligence, the claim for damages by a customer who is a merchant is limited to compensation for foreseeable damages. A claim for damages by a customer who is not a merchant due to delay or impossibility resulting from slight negligence shall be considered up to a maximum amount equal to one-quarter of the purchase price.

11. Place of Performance and Jurisdiction

The place of performance for our deliveries is the respective shipping location and, to the extent permitted by law, Horb-Ahldorf for our other services. The place of jurisdiction for both parties is Horb a.N.

12. Severability Clause

The invalidity of individual provisions shall not affect the validity of the remainder of the contract. Please note that we process the customer’s data relating to our business transactions with him in accordance with the Federal Data Protection Act.