Terms of delivery

We contract exclusively on the basis of the following terms. Deviations from these terms are only effective when acknowledged by us in writing. Customer’s standard terms which are not acknowledged by us in writing are not binding on us, even when not expressly contradicted. Alterations of these Business Conditions will be notified to the customer in writing. They have to be regarded as accepted if the customer does not object. We will inform the customer about this consequence upon notification of the new conditions. The objection must be made in writing and has to be mailed within one month after notification of the alterations. These terms are applicable for future dealings, even if their applicability is not expressly stated. The written form for the purposes of these terms is also fulfilled by fax letters and e-mails.

I. Offers, Volume of Delivery

1. Our offers are subject to change. The validity of oral agreements and agreements made by telephone communication requires our written confirmation.
2. Documents relating to our offers, such as diagrams and drawings, indication of weight and measurements, as well as details set out in brochures are approximate unless otherwise expressly indicated. Title and copyright to estimations, drawings and other documents are reserved. These documents must not be made available to third parties without our prior consent.
3. All products meet the German standards and accord with the German provisions. Any authorisations and acceptance of the products according to foreign technical standards and provisions have to be arranged for by the customer. If such examinations shall be carried out at our works, they must be carried out by companies which are state-registered in Germany at the customer’s costs.
4. The scope of delivery is determined having regard to our written order confirmation. If an order has not been confirmed, our quotation is binding. Ancillary agreements and alterations are valid only if we have confirmed them in writing.

II. Costs and Conditions of Payment

1. Save an agreement to the contrary, prices are ex works. We are entitled to increase the price agreed upon with the buyer according to the extra charges being imposed on us after conclusion of the sale by legal or official instructions such as taxes, examinations levies, customs or currency conversion compensations.
Packaging is charged extra and at cost price.
2. In case of deliveries abroad the customer has to bear all levies, charges, taxes and costs for the technical examinations which are incurred outside Germany. This also applies to the legalization of certificates of origin, invoices of consulates, etc.
3. Net payments have to be made as follows: 1/3 upon placing of the order, 1/3 after half of the time for delivery has passed, the residual amount upon delivery or upon notification that the goods are ready for shipment, if delivery cannot be effected upon completion for reasons not attributable to us.
4. Payment by bills and cheques will be considered made on account of performance. We accept no responsibility for the timely receipt of and protest against bills whose payment must be fulfilled abroad or outside of Germany. Discounting charges are calculated from the date of invoice. The customer’s culpable non-compliance with his obligations for payment, in particular through failure of cheques and bills, or non-payment, gives us the right to demand the total outstanding balance, even when we have accepted the cheques and bills. In addition, we are entitled to demand advance payments.
5. The set-off by counterclaims or the enforcement of rights of retention is only permissible in so far as the customer’s claims are indisputable or legally determined.
6. If after the conclusion of the contract it becomes apparent that our claim to payment is endangered by inadequate ability to pay, we can refuse to perform our contractual obligations and fix a period by which payment shall be a concurrent condition of delivery or by way of security. In the event of the expiry of a deadline we are entitled to withdraw from the contract and claim damages. The setting of a time period is dispersible if the customer withholds payment or if certain circumstances exist which on a balance of the interests of both parties justify our immediate rescission of the contract.

III. Time of Delivery

1. The agreed periods set out in our confirmation of order or otherwise agreed with our customers are decisive. Compliance with these time periods presupposes the timely receipt of all the customer’s supply orders as well as compliance with the agreed conditions for payment and other obligations. If these requirements are not met on time, the delivery period will be prolonged by the duration of the delay.
2. The delivery period shall be regarded as observed if the goods ready to be operated have been dispatched or collected within the agreed delivery period. In case the handing over is delayed for reasons attributable to the customer, the period will be regarded as observed if the readiness for dispatch has been announced within the agreed deadline.
3. Partial deliveries are admissible insofar as this is reasonable for the customer.
4. If we are prevented from full performance of our duties because of unforeseeable and exceptional circumstances, which we could not have prevented by reasonable care, the delivery period is extended to the extent of the duration of the obstruction if delivery or performance has not been rendered impossible. This remains the case even if the obstruction comes from our factory or from failure of our supplies, for example, from interruptions of operations, government intervention, delays in delivery of essential raw and building materials. If delivery or performance is rendered impossible by virtue of the indicated circumstances, we are relieved of the delivery obligation.
5. In the event of a strike or lock-out the delivery period is also extended to a reasonable extent. If delivery or performance becomes impossible, we are relieved from the delivery obligation. If the delivery period becomes extended by more than one month through the above mentioned events, the customer is entitled to withdraw form the contract. Enforcements of claims for damages are excluded.
6. The same shall apply if the aforementioned impediments happen to the customer. We will plead the aforementioned circumstances only if we have informed the customer immediately.
7. In the event of the date for dispatch or delivery being delayed on request of the customer, we can charge monthly for storage, amounting to ½ per cent of the net billing amount. The storage charge shall not exceed five per cent of the net billing amount unless we prove that our costs are in excess of the maximum amount. This right to charge for storage becomes available one month after notice of completion or readiness for dispatch.

IV. Dispatch, Passing of Risk

1. The risk passes upon handing over of the goods to the carrier. If dispatch is delayed for reasons attributable to the customer or one of his staff, risk shall pass at the date the customer is notified of readiness for dispatch.
2. For all shipments we conclude the customary transport insurance which also covers the risks of loading and unloading and the transport of the goods to their final destination immediately after the unloading. Insurance expenses will be charged to the customer. Further insurances will be entered into upon the customer’s written request and against a respective prepayment.

V. Reservation of Title

1. The delivered goods remain our property until the full payment of the agreed price. This is the case for all claims resulting from the business connection and all future claims and remains the case until cheques have been cashed. If a current account exists between the customer and us the reservation of title provides security for the balance.
2. If the customer pays by cheque and for this we issue him a financing of finance, our reservation of title does not expire until we can no longer bring a claim on the basis of the bill.
3. The resale of goods by the customer is permitted if this occurs in the course of ordinary business dealings. The customer transfers to us his claims arising from the resale of the reserved goods, in particular the claim to payment from the purchase. We accept this assignment. Upon our request the customer has to inform his debtors about the assignment. The customer has to inform us of the claims and identities of his debtors.
4. The customer is entitled to collect claims which result from the resale. On default of payment or as soon as we become aware of circumstances which, according to accepted business practices, would diminish the creditworthiness of customers, we are entitled to withdraw this right.
5. The alteration and use of the reserved goods are carried out for us, being producers under § 950 BGB. If the reserved goods are worked into another product not being ours or mixed with such a product, we will acquire such title to this new product as is in proportion to the net worth of our goods as against the net worth of the charged product at the time of the process or mixing.
6. The chattel mortgaging of goods which remain our property is not permitted. In the case of third party interest in the reserved goods, particularly access as regards seizure, the customer must point out our enduring title to the goods. Such a situation must also be brought to our attention without delay by the transfer of a copy of a record of the seizure.
7. If the realizable value of the conceded securities exceeds our claims by more than 20 per cent we are obliged, on the customer’s demand, to either reassign or release the securities. We retain a free choice between these options.
8. The customer has to provide for an adequate insurance of the reserved goods. He has to safeguard that the reserved goods are insured against fire. Further risks have to be covered by a machine insurance. Proof of the insurance has to be made in writing upon receipt of the notice of dispatch.

VI. Customer’s Rights in the Event of Faults

1. We hereby transfer our available claims against the outside suppliers of essential products to the customer. The customer may only hold us liable for the faults of these parties when a court action is brought against the third party without success. If the third party supplier has its headquarters abroad the failure of an out of court action will suffice. The customer is obliged to inform us of actions against our suppliers and, on our request, should keep us informed of related matters.
2. The customer must inform us in writing of all defects.
3. In the case of the notification of such defects as would entitle the customer to a claim, we have the right, within a reasonable period of at least 14 days, to remedy these defects or to deliver replacement goods. We have a free choice between these options. If this subsequent performance fails the customer is entitled to withdraw from the contract. This right exists only insofar as the defect in contractual performance is not simply trivial. In addition to the right to withdraw the customer is, at the same time, entitled to claim for damages or expenses. The customer’s right to remedy the defect himself according to s. 637
BGB (German Civil Code) remains unaffected. The claim available in the event of the failure of subsequent performance is separately redeemable against each defect. A customer’s right to reduction of the purchase price does not exist in the case of trivial defects.
4. On the customer’s withdrawal from the contract, the delivered goods must be returned and, notwithstanding other claims, the customer must pay an adequate sum for the period of usage.
5. Customer’s claims arising from necessary expenditure incurred in the course of subsequent performance are excluded, particularly transport, labour and material costs. This is the case insofar as the expenditure is increased because the place of delivery required by the customer or a third party is subsequently altered, unless the transfer is according to customary usage of the goods or has been agreed contractually.
6. Customer’s claims are subject to a limitation period of 12 months. This is not the case insofar as longer periods are legally stipulated in ss. 438 Abs. 1 Nr. 2, 479 Abs. 1 and 634a Abs. 1 Nr. 2 BGB (German Civil Code), namely for buildings, building materials, claims of recourse, and building defects.

VII. Limitations of Liability, Damages

1. We are not liable for the slightly negligent breach of immaterial contractual duties.
2. Our liability for consequential damages is excluded except in cases of intent, gross negligence, or breach of material contractual duties. Insofar as we are liable for consequential damages, this is only the case for foreseeable damage, and is not applicable for extraordinary damages.
3. Customer’s claims arising out of product liability laws or physical damage or damage to health attributable to us, as well as the loss of life of customers or of employees, are not affected.
4. The shortening of the limitation period according to VI. 6. above is not applicable when we have committed gross negligence or in the case of physical damage, damage to health, or loss of life of the customer or employees, which is attributable to us.
5. When limiting or excluding liability the burden of proof for establishing relevant facts lies with us.

VIII. Special Rules Governing the Transmission of Data

1. The contents of files and know-how contained in these remain solely our property. The files must only be used by the customer for the purpose contractually provided for. The contents of the files must not be copied, duplicated, or passed on to third parties without written consent
2. We do not accept liability for damage arising from the transmission of data, in particular from viruses. This does not apply in the event of intent, physical damage or damage to health, or loss of life to the customer or employees.

IX. International Business Dealings

1. If the customer’s registered office is not in Germany or if we are supplying a customer’s foreign office the CISG of 11.04.1980 is applicable in addition to these terms. Matters not regulated by the CISG will be determined according to German law.
2. The CISG is modified as follows:
a) Liability for delivery of replacement goods according to Art. 46 CISG is only accepted when the non-compliance with the conditions of delivery represents a
material breach of contract.
b) Early deliveries are possible contrary to Art. 52 CISG.
c) If interest is to be paid according to Art. 78 CISG, the rate will be in accordance with the prevailing German interest rate. This amounts to 8 per cent above the base rate according to s 247 BGB (German Civil Code).

X. Place of Performance and Jurisdiction

1. Place of performance for all obligations arising out of this contractual relation is Bielefeld.
2. Jurisdiction for all disputes resulting from this contractual relation is Bielefeld. This is the case when they involved customers are merchants, legal entities of public law or other assets held under public law. We are, however, free to have recourse to the court which has jurisdiction in the place of the customer’s registered office.
3. German law is the sole governing law.

XI. Data protection

We are entitled to store, to transmit, to modify, and to delete customer’s personal data. The customer is hereby given notice pursuant to s. 26 BDSG (German Statute regarding the Protection of Data).

Date 03/2003