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GENERAL CONDITIONS OF SALE (Version 08/2010)

I General

1. These General Conditions of Sale shall be an integral part of the contract - also of future contracts - of purchase and other services between the contracting parties.

2. The Buyer’s Conditions of purchase shall not be effective, this shall also apply if the Seller has not expressly opposed to them in particular case.

 

II Offers / Conclusion of Contracts

1. All offers are subject to confirmation unless the Seller has expressly stated his obligation to an offer for a fixed period of time. Verbal supplements to the contract are not agreed on.

2. Call-off contracts require a specific stipulation. In this case the Seller shall be entitled to produce the order in one single quantity or mandate a third party with the production. If the Buyer does not call for the ordered goods as agreed on, the Seller shall be entitled either to withdraw from the contract after a reasonable time has elapsed or to claim damages.

3. Documents like drawings, images, technical data, references to standards and statements in advertising being part of the offer constitute no guaranty of quality except otherwise is provided for expressly and in writing.

4. Deviations of the delivered good from offers, samples, trial shipments and from previous deliveries shall be admissible subject to the proviso that they are in correspondence with the topical DIN-/EN-standards or other relevant technical norms.

 

III Prices

1. Our prices are, except where otherwise is provided for, ex works excluding packing, plus value-added tax.

2. If the goods are packed for transport, packing is charged at cost price; within statutory provisions we take back delivered packaging, if the Seller returns them within a reasonable time and freight is prepaid.

 

IV Payment and Set-off

1. Our invoices are, except where otherwise is provided for, payable within 10 days less 2 % discount, within 30 days net cash, from the time of delivery and receipt of invoice.

2. Contested demands or counterclaims not having become res judicata shall neither grant the Buyer a right of retention nor entitle the Buyer to offset against a claim.

3. From day of maturity the Seller shall be entitled to charge interest at rate of eight percenttage points above topical base rate. The assertion of a damage claim caused by default may additionally be admissable.

 

V Delivery

1. On transfer of the goods to a forwarder or to a carrier, at the latest with goods leaving the warehouse or - in case of drop shipment - , the risk of accidental loss, destruction or deterioration shall pass to the Buyer. This also applies when postage is prepaid. The duty to unload and the costs involved are at the expense of the Buyer.

2. An insurance contract is only concluded by the Seller if the Buyer entrusts the Seller with the formation of such a contract and costs are borne by the Buyer.

3. In case of force majeure, industrial disputes practices and other operational breakdown beyond the control of the party obliged to perform, which continue or which presumably will continue for more than one week, the delivery time shall be prolonged as long as and to the extent the hindrance prevails. The prolongation only arises if the other party is immediately notified of the cause and presumable duration of the hindrance as soon as it becomes obvious that the delivery time can not be complied with.

4. If, as a result of force majeure and industrial disputes the performance of the contract becomes unreasonable and that hindrance can not be classified as a short-term delay, either party shall have the right to withdraw from the contract. If the Seller`s supply has not been completed faultlessly or not in due time the Seller shall only be entitled to withdraw from the contract with a non-entrepreneurial / private consumer when he has not caused the failure in supply by culpable act or omission.

 

VI Deadline for delayed delivery

1. After the expiration of the delivery time the Buyer has the right to set a reasonable period of grace. After the expiration of the period of grace the statutory claims are due to the Buyer. If the Buyer fails to comment on the Seller’s inquiry whether he insists on the performance of the contract, the Seller shall be relieved from his supply commitment.

2. Transactions for delivery by a fixed date are not concluded by the Seller. If in a particular case the parties stipulate expressly that the goods are appropriated to a specific campaign, a determined delivery time without the obligation to set a period of grace may be agreed on. After expiration of this period of time the Buyer shall be entitled to demand compensation for the necessary expenses to a maximum amount of the cost price of the ordered goods.

 

VII Reservation of Title

1. Title to the goods shall not pass to the Buyer until he has fulfilled all liabilities arising from his business connection with the Seller, which shall include settling accessory claims, claims for damages and honouring checks and bills. Title to the goods shall also remain with the Seller if the Seller’s claim has been included in a current account and the balance of this account has been struck and acknowledged.

2. If goods to which the Seller retains title are processed into new, movable products by processing, attaching or mixing them with other goods, the Buyer shall be deemed to be effecting such processing on behalf of the Seller without thereby acquiring any claims on the Seller. Title to the new processed good shall not pass to the Buyer according to the provisions of s. 947 ff. Federal Civil Code (BGB). If goods to which title is retained by the Seller are processed, mixed with or attached to goods to which title is retained by third parties, the Seller shall acquire co-ownership of the resulting products in the ratio of the value of the goods owned by him to the total value of the new product. The Buyer shall be under the obligation to provide, on behalf of the Seller, adequate storage of the new product to which the Seller retains title at his expense.

3. In the normal course of business and under the condition that no disadvantageous change in the financial circumstances has occurred, the Buyer shall have the right to sell and process the goods to which the Seller retains title. By accepting these Conditions, the Buyer assigns in advance to the Seller any claims which may arise from a resale of the goods to which the Seller retains title, together with any claims for damages. If the Buyer sells goods to which the Seller has co-ownership pursuant to clause VII 2., the claims arising from the sales contract shall be due to the Seller in the ratio of the value of his co-ownership.

4. As long as the Buyer duly meets his liabilities to the Seller, he shall be entitled to collect the assigned claims. The collecting power shall extinct in case of failure to pay on due date and in case of an essential worsening of the financial situation of the Buyer. For this case the Buyer, by accepting these Conditions, authorizes the Seller to inform the purchasers of the assignment and to collect the claims himself. The Buyer is obliged to provide any information and documentation required for the collection of the claims and to permit the review of the information given. In particular the Buyer is obliged to provide the Seller with a detailed list of the claims, together with the names and addresses of the purchasers, the amount of each claim and the date of invoice ect.

5. If the value of the security provided to the Seller exceeds the value of the claims to be safeguarded by more than 10 percent, the Seller shall, at the Buyer’s request, release security of his own choice accordingly. The Buyer shall neither have the right to pledge, chattel mortgages of the goods to which the Seller retains title nor to assert any claim. Any seizure of property shall be brought together with the name of the pledgee to the Seller’s attention by the Buyer immediately.

6. Acceptance of the returned goods to which the Seller returns title shall not constitute a cancellation of the contract unless the Seller has expressly declared otherwise. The Seller is entitled to sell the returned goods by private treaty.

7. The Buyer shall be under obligation to provide, on behalf of the Seller, adequate storage of the goods to which the Seller retains title at his own expense. The Buyer is obliged to insure the same at his expense against the usual risks, for example against risks because of fire, water and thefts up to an extent which may reasonably be expected by a prudent businessman. By accepting these Conditions the Buyer assigns in advance to the Seller any claims which may accrue to him under the insurance policies or other claims against third parties being liable for the damages. The Seller accepts the assignment.

 

VIII. Defects

1. Notification of defects shall only be recognized if filed within two weeks of receipt of the goods. This shall not apply to hidden defects which have to be notified to the Seller within one year upon discovery.

2. No claims may be lodged for any minor, technically not avoidable deviations from quality, colour, width, weight of the equipment or of the design; they shall not be considered as defects in terms of s. 434 Federal Civil Code (BGB). This shall also apply to customary deviations, unless the Seller has expressly guaranteed a delivery according to samples.

3. Justified notifications of defects shall entitle the Buyer to claim for supplementary performance of the contract by claiming the removal of the defect or by claiming replacement. When claiming for supplementary performance of the contract the Buyer may neither reduce the purchase prise nor cancel the contract. If the supplementary performance of the contract fails, statutory provisions apply.

 

IX Limitation on Liability

1. Compensation for a violation of contractual and non-contractual obligations may only be lodged by the Buyer in case of an intentional or negligent breach of duty by the Seller. This limitation shall not apply in cases of life-, personal- and health injuries, to a culpable violation of a substantial obligation when the purpose of the contract is jeopardized, when an expressly guaranteed condition or durability is not complied with or in cases of imperative liability stated by the German Product Liability Act (Produkthaftungsgesetz).

 

X Periods of Actions

Contractual claims of a commercial Buyer against the Seller effectively connected with the delivery shall expire with effect from 12 month from the hand-over of the goods to the Buyer.

 

XI Copyrights

1. Copyrights and property rights to estimations of costs, drafts, drawings and other supporting documents are reserved to the Seller; the Buyer shall not be allowed to make them available to third parties without the prior’s consent of the Seller. Drawings and other documents forming part of the offer shall be returned to the Seller upon request.

2. In case of delivery of goods according to drawings, models, samples or other documents handed over by the Buyer, the Buyer guarantees that industrial property rights of third parties are not violated. If third parties prohibit the production or delivery of goods invoking their industrial property rights, the Seller shall be entitled - without the obligation to review the legal situation – to discontinue any work and in case of negligent conduct, to claim damages. The Buyer shall be obliged to exempt the Seller without undue delay from all claims being effectively connected with the third’s party industrial property right.

 

XII Pilot parts, moulds, tools

1. If the Seller has to submit certain items for the accomplishment of the contract, he has to deliver them free production centre, free of charge and defects, in the quantity agreed on or in a reasonable additional quantity in case of expected rejects. If the Buyer fails to comply with these conditions, costs and other consequences incurred by this non-compliance shall be due to the Buyer.

2. The Buyer is obliged to supply the pilot parts and the incurring costs for moulds and tools shall be due to the Buyer.

3. Property rights to moulds, tools, and other devices required for the production of the ordered goods depend on the agreement entered into. If such devices required for the performance of the contract become unserviceable, expenses incurred by replacement shall be due to the Seller. The Seller shall be obliged to keep such devices ready for at least two years after the last employment.

4. Of tools, moulds and other devices required for the production the Seller’s liability shall be limited to the diligence one usually employs in one’s own affairs. Costs incurred by servicing and maintenance are due to the Buyer. The Seller’s obligation to preserve expires – irrespective of the Buyer’s title - two years at the latest after the last production process by means of the mould or tool.

 

XIII Place of Performance, Jurisdiction and applicable Law

1. The place of performance (“Erfüllungsort”) for the entire contractual relationship are our premises in Düren. For all relationships with people or traders, the place of jurisdiction over all disputes arising out of this contract is the place of our head office. However, we may also sue the buyer at the place of general jurisdiction (“allgemeiner Gerichtsstand”) applicable to the buyer.

2. Statute law of the Federal Republic of Germany applies to the exclusion of the U.N. Convention on the International Sale of Goods (CISG) from 11.04.1980.

H. Seybold GmbH & Co. KG
Postfach 101755 • D-52317 Düren
Fon +49 (0)2421 / 6905-0 • Fax -49