Conditions of Use

The following General Terms of Sale and Supply shall apply for all transactions under exclusion of any opposing purchasing terms. These General Terms of Sale and Supply are also recognized for subsequent transactions through placement of the order, but no later than acceptance of our delivery. Divergent agreements shall require our written confirmation for legal validity. All remaining terms shall remain unaffected by the elimination or amendment of individual terms and conditions.

2. Offers and prices are non-binding and quoted ex warehouse Kissing plus value-added tax. The delivery note and invoice shall also serve as order confirmation insofar as none is sent separately in advance. All agreements, declarations and subsidiary verbal agreements require the written form in order to be valid.

3. Should supply take place more than four months after conclusion of the contract by agreement or for reasons for which we are not responsible and if in the interval between contract conclusion and date of supply our payroll and/or material costs change, in particular due to price changes of any upstream suppliers, changes in exchange rates, import duties, taxes and other levies as well as changes in insurance premiums or transport costs, the agreed price shall change accordingly.

4. Any change in any quality regulations and/or objections raised on account of patent claims, trademarks and similar third-party rights shall not entitle the purchaser to rescission. This shall not apply in the event of a violation of a material obligation of the contract (cardinal obligation) on our part or on the part of our legal representatives or one of our vicarious agents.

5. The supply, mailing and shipping dates named by us are always non-binding insofar as no other provision was expressly agreed upon in writing, are specified with reservation of proper and punctual delivery to us and do not begin until all execution details have been resolved, e.g. regarding dimensions, designs, models, in particular by the customer, but at the earliest as of the date of our order conformation and the remittance of any payments on account agreed on. This shall also apply in the case of partial deliveries, which we are entitled to make at any time under appropriate consideration of the purchaser’s interests. The supply dates shall be extended in the event of force majeure, e.g. strikes, lock-outs, subsequent material shortages (particularly lack of raw materials and energy), import and export restrictions, transportation disturbances, frost, official orders or unforeseeable events that subsequently materially impede us and/or our suppliers and/or their subsuppliers in performance or make this impossible, by the period of the impediment and an appropriate resumption phase. The purchaser will be informed of the aforementioned circumstances. We are also not responsible for the aforementioned circumstances when they occur during a present delay. Our right to withdraw from the contract in whole or in part shall remain unaffected by the foregoing provisions.

6. Orders are only binding on us when we confirm them in writing within a period of no more than three weeks from the date of the order. The contract shall only be deemed to exist with this confirmation. In spite of this, the purchaser shall remain bound by the order he has placed for as long as it remains unconfirmed by us.

7. Our (sales) employees and sales representatives are not authorized to make agreements or issue assurances; this shall instead require an individual agreement bearing the legally valid signature of an authorized representative.

8. If the purchaser is an entrepreneur within the meaning of the German Civil Code (BGB), the order shall be shipped for the account and at the risk of the customer insofar as no other terms of supply were agreed on, which require our written confirmation. We supply samples only against a fixed invoice and with no right of return.

9. We will take the dimensions and quantities of the ordered merchandise into account as precisely as possible with, however, the reservation that a tolerance of 10 percent above or below is permissible if the purchaser is an entrepreneur within the meaning of the German Civil Code (BGB).

10. All supplies and performances are to be inspected for visible transportation losses, defects or any damage immediately on delivery, objections are to be noted and documented in compliance with the terms of the forwarding agent in the presence of the driver and notification of these is to be submitted to us in writing no later than within two weeks from receipt of the deliveries. For purchasers who are merchants within the meaning of the German Commercial Code (HGB), section 438 HGB applies. Should the purchaser fail to submit notice in good time, the delivery and performance shall be deemed approved with respect to any transportation losses, defects or any damage. The purchaser shall always be obligated to observe the necessary formalities with respect to the forwarding agent.

11. Irrespective of the provisions of Item 10 above, notification of visible defects, incorrect deliveries or quantity deviations is to be submitted in writing no later than within two weeks from delivery/transfer of our deliveries and performances, whereby no right of complaint shall be deemed to exist after the commencement of further working/installation. Should the customer fail to submit notification in good time, the deliveries and performances shall be deemed approved. For purchasers who are merchants within the meaning of the German Commercial Code (HGB), Sec. 377 HGB shall apply instead. Regardless of any defects, our deliveries and performances are to be received and appropriately stored by the purchaser, whereby the purchaser’s rights regarding defects shall remain unaffected.

12. In the case of justified complaints, the purchaser shall be entitled to two remedial attempts at no charge or a substitute delivery, at our discretion. Incorrect quantities will be made up under consideration of Item 9 of these Terms and Conditions. If the two remedial attempts or the substitute delivery fail to produce the desired outcome within a reasonable period, the purchaser shall have recourse to his statutory rights. We can refuse to remedy defects or perform substitute delivery for as long as the purchaser does not fulfill obligations due us. The assertion of the defense of defects with the corresponding right of performance refusal/right of retention on the part of the purchaser shall remain unaffected.

13. All claims for damages of the purchaser are hereby excluded, either directly or indirectly relating to the order, delivery or use of our deliveries or performances, regardless of their legal basis. This liability exclusion shall not apply for the violation of a material contractual obligation (cardinal obligation).

In all cases, our liability shall be limited to compensation for the foreseeable damage typical for this type of contract. Purchaser’s claims for (damages) compensation against us based on contractual penalty claims of the purchaser’s customer can in no way be foreseen by us and are not typical of the contract in the above sense. In all cases, we shall have the right to prove lesser damages. Contractual penalties can only be exercised against us when they were previously established in a separate agreement for each individual instance.

The foregoing liability exclusions and limitations shall not apply for losses from harm to life, body or health resulting from a deliberate or negligent violation of obligations on our part or on the part of a legal representative or one of our vicarious agents. The foregoing liability exclusions and limitations shall also not apply for other losses resulting from a deliberate or grossly negligent violation of obligations on our part or on the part of a legal representative or one of our vicarious agents, or in the event that other losses are incurred through the lack of a warranted quality or on account of malicious concealment of a defect.

14. If the purchaser is an entrepreneur within the meaning of the German Civil Code (BGB), all claims for damages of the purchaser on account of material defects or contractual provisions shall become statute-barred 12 months from delivery.

15. The respectively binding payment terms are stated in the respective invoice. Insofar as not otherwise agreed on, invoices are payable within 14 days from the date of invoice at a 2% discount or no later than 30 days from receipt of the invoice without deduction. The receipt of the amount for our unrestricted disposal shall be definitive for the punctuality of payment. Checks are only accepted subject to payment. A payment by check shall be deemed effected when the check has been redeemed and the amount credited without restriction. Payments by bills of exchange are also accepted only conditionally and only after prior written consent.

If the purchaser is not a consumer within the meaning of the German Civil Code (BGB), we are entitled to demand default interest in the amount of 8% over the base interest rate in the event of default of payment. Additionally, further deliveries can be made contingent on payment of arrears in full. The assertion of further default losses is reserved.
Amounts received are first applied to costs and interest and then to the oldest debt due.

If the purchaser is in default of payment, we have the right to demand payment of all claims against him with immediate effect and/or demand provision of security before delivery, retain outstanding deliveries from this and other contracts in whole or in part or withdraw from the existing contracts in whole or in part, as well as to reclaim and realize merchandise delivered with reservation of ownership at the purchaser’s expense, notwithstanding the aforementioned rights. This shall not apply if the purchaser is not responsible for said default. The proceeds of realization are to be applied to the purchaser’s debts, minus the realization costs. The purchaser shall have the right to show that the realization incurred inappropriately high costs; if satisfactorily demonstrated, the purchaser shall not bear the corresponding difference.

The purchaser shall only enjoy rights of offsetting, retention and refusal of performance where counter-claims have been found legally valid or are undisputed. Additionally, the purchaser shall only be entitled to exercise a right of retention or refusal of performance to the extent that his counterclaim is based on the same contractual relationship.

16. All merchandise/work performance supplied shall remain our property until the full compensation of all claims accruing to us from the business relationship with the purchaser including any refinancing transactions. This shall also apply when the purchase price has been paid for specific merchandise deliveries designated by the purchaser. For standing invoices, the ownership reservation also applies as security for our receivables balance. For payment of our invoice via check or bill of exchange, the redemption of the check/bill of exchange, and not merely its tendering, shall be definitive for the final settlement of our claim. The resale of merchandise supplied by us is only permitted in the course of orderly business. Pledging of the merchandise or transfer by way of security is not permitted. In the case of execution for debt or liens, the purchaser must reveal and provide notice as to the existing reservation of ownership and notify us in writing without delay so that the appropriate countermeasures can be taken. The purchaser shall be liable for the judicial and extrajudicial costs incurred in this process if no compensation can be obtained otherwise.

In the case of resale of the reserved merchandise by the purchaser, the purchaser shall for his part only supply the merchandise to his customers under a validly stipulated reservation of ownership (extended reservation of ownership), whereby the aforementioned current-account reservation agreed upon shall not apply for the extended reservation of ownership. The purchaser hereby assigns to us in advance all claims against his customer or third parties from the resale of the reserved merchandise, where appropriate including any claims accruing to him in future, commensurate to the gross invoice value of our deliveries and performances or our ownership share. This assignment is hereby accepted.

Working, combining, mixing and/or aggregation of the merchandise/work performance delivered/created by us on the part of the purchaser is always deemed to be performed on our behalf, with no obligation accruing to us thereby. In the case of working, combining, mixing and/or aggregation together with objects not belonging to us, we become co-owner of the new object in proportion to the value of the reserved merchandise in relation to the other objects at the time of working, combining, mixing and/or aggregation. Should the purchaser obtain sole ownership of the new object, it shall be deemed as agreed that the purchaser transfers to us co-ownership in proportion to the gross delivery value. The purchaser shall hold the sole or co-owned property created in this manner on our behalf. For the merchandise created through working, combining, mixing and/or aggregation, the same shall apply as under the reservation of ownership for merchandise/work performance delivered under reservation of ownership in all other respects.

In the case of working, combining, mixing and/or aggregation of our own merchandise/work performance with those of outside suppliers, the assignment of claims shall only apply in proportion to the gross invoice value of our reserved merchandise in relation to the external merchandise also sold. The purchaser shall also remain authorized to collect the claim following transfer. Our right to collect the claim ourselves shall remain unaffected by this. However, we are obligated to refrain from collecting the claim as long as the purchaser properly fulfills his obligations toward us. However, should the purchaser fall into arrears of payment, we shall have the right to notify the purchaser’s customers of the assignment of the claim or the reservation of ownership and to collect these claims ourselves. The purchaser shall be obligated to immediately remit to us the proceeds from the resale of our merchandise/work performance in each instance insofar as our claims are or become due. Payments which the purchaser receives from his customers are deemed collected in trust on our behalf. In the event of cessation of payment, petition for insolvency against the purchaser’s assets or non-fulfillment of obligations toward us, the authorization to resell the merchandise subject to reservation of ownership and to collect claims against customers shall automatically become void and transfer to us.

On our demand, the purchaser shall be obligated to disclose the transfer of claims to the third-party debtor and to provide us with the information and documentation necessary to assert our rights against the third-party debtor without delay.
We are obligated to release the security provided to us on the purchaser’s demand providing that the realizable value of the security exceeds the claims to be secured by more than 20 %; selection of the security to be released shall be at our discretion.

17. Pursuant to our obligation under Sec., 26 and 34 of the German Data Protection Act BDSG, we hereby inform you that data respecting business transactions is processed at a central location within our enterprise.

18. The law of the Federal Republic of Germany shall be solely applicable, but not German International Private Law. The place of fulfillment and sole place of venue for all disputes arising either indirectly or directly from this contractual relationship is Kissing, provided that the customer is a merchant within the meaning of HGB. Irrespective of the merchant status, this shall also apply for the case that the customer transfers his residence or normal whereabouts abroad, the place of residence or normal whereabouts are not known at the time suit is filed or our claims are asserted through the dunning process. We have the right to take action at the customer’s general place of venue.

Inter Werbung GmbH , Bahnhofsallee 8, 86438 Kissing, Germany Version 03/2006

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