General Terms and Conditions (of Sale and Delivery)
The following conditions of sale and delivery apply only to the commercial and public sector in accordance with § 24 Ziff. 1 and 2 General Terms and Conditions Act and are also applicable, unless otherwise specified, for all future transactions with us.
I. Offer and Conclusion of Contract
1. Our offers are subject to confirmation. Contracts become binding by our confirmation or by our execution of the contract.
2. Deviations from these conditions of sale must be submitted in writing, and must be explicitly approved by us!
II. Prices and Terms of Payment
1. Prices are ex works prices and do not include postage and packing charges.
2. Our invoices are payable within 30 days from date of invoice, without any reduction. If payment does not occur within this period, we are entitled to plead for a default interest of 2% above the discount rate in force then of the Bundesbank (German Federal Bank).
3. Should we either raise or lower our prices between conclusion of contract and delivery, the invoiced price is the price valid on the date of conclusion of the contract.
4. We reserve the right to use incoming payments for the settlement of the oldest receivables, plus the default interest that might have accrued in the meantime; the payment sequence that applies is as follows: costs, interest, main claim.
5. The offset with counterclaims that are undisputed and/or legally valid, as well as the application of rights of retention or rights of non-performance of payment against claims of the purchase prize need our consent.
6. If solvency of the customer appears doubtful, especially if arrears have already occurred, we are, subject to further claims, entitled to demand advance payments and securities for any further performance on our part and to revoke existing payment periods.
7. First orders by new customers are processed only against advance payment.
III. Delivery, Contract Hindrances
1. Delivery periods are nonbinding, if not otherwise explicitly specified for a special case. Part shipments are permissible. If a fixed delivery date has been established and we are in default, the customer has to fix an adequate period of grace of at least 4 weeks. If delivery does not occur within that extended time period, the customer has the right to withdraw from the contract.
2. If the customer does not buy the ordered goods, we are entitled to withdraw from the contract or to claim damages for non-fulfilment after a period of grace of 10 days has elapsed. In the latter case we are entitled, without evidence of the actual amount of damage, to claim 25 % of the purchase price in compensation for the damage.
3. Reduced articles cannot be exchanged. We do not accept the exchange of custom-made goods as well as of articles that are not part of our standard product range. This also includes articles that need to be specially produced for a specific customer.
4. Orders are being accepted under the condition that it is possible to manufacture them within the limits of our productive capabilities. Force majeure, business or traffic problems, scarcity of energy/labour/raw materials/resources, strikes, lockouts, delivery or supply problems, official decrees, and other hindrances that may diminish, delay, hinder the delivery or render it impossible within reasonable limits, free us from our obligation to deliver for as long as the disturbance lasts and insofar as the effects of the disturbance hinder us to perform our part of the transaction. Should the effects of these events continue we are entitled to withdraw fully or partially from the contract without entitling the customer to claim damages. When events such as mentioned above occur, the customer is entitled to withdraw from the contract after an adequate period of grace has elapsed. The customer cannot make any further claims.
5. Delivery takes place ex works or warehouse, and the customer carries the cost as well as the risk. If delays in delivery are caused by the customer, the risk is on the side of the customer once we have notified the customer that we are ready to dispatch. We are not liable for damage or loss of goods during delivery. If not otherwise stated, we choose shipment and packaging to the best of our knowledge. We are not subject to compulsory insurance. If the customer demands insurance against potential damages resulting from transport or other causes (only in writing), goods will be insured accordingly.
IV. Reservation of Title
1. We remain the owners of delivered goods until full payment has occurred. With payment we mean that we have received the full amount of money invoiced.
2. If the customer fails to pay, or neglects his or her obligations as a customer resulting from the reservation of title, we are entitled to, even without withdrawing from the contract or allowing a period of grace, claim the return of our property from the customer and to collect it from the customer. The entire residual debt becomes payable immediately. The distraint of goods already delivered by us does not count as a withdrawal from the contract for the customer. After a period of grace has elapsed, we are entitled to sell the goods in question at the best possible price, the profits of which transaction will be deducted from the amount of money still owed by the customer. All costs that occur in taking back and selling the goods in question carries the customer. Exploitation of goods costs 10 % of net profits achieved (no evidence will be given), including turnover tax.
3. The customer is entitled to use goods that are still part of our property within the limits of ordinary business conduct, as long as he or she meets the obligations resulting from the contract. In the case of resale of goods by the customer, the customer has to ensure full payment by the purchaser before the property passes on to the latter. The right of resale ends if the purchaser fails to pay.
4. The customer relinquishes all monetary claims resulting from the resale of goods that are still our property up to the limits of our property rights to the goods in question.
5. At our demand the customer has to supply all necessary information about the state of the goods within our property, and about the claims relinquished to us according to Ziff. 4 (especially by way of copies of invoices issued to purchasers) and has to inform the purchasers of having relinquished certain claims. If Ziff. 2 applies we are the only party entitled to inform the purchasers of the relinquishment of claims by the customer and to collect outstanding claims.
6. Distraint and confiscation of goods by third parties must be brought to our notice immediately. The costs for necessary legal interventions resulting from such action carries the customer.
7. If the value of securities exceeds our claims by more than 25%, we will release securities of our choice on request of the customer.
V. Responsibility for Damages and Defects
1. Complaint letters will be considered only if we receive them in writing within 14 days of receipt of goods by the customer. Pieces of evidence, specimens, invoice number and invoice date must be included. Loss and damage during transport have to be declared in writing within two working days of receipt of the goods in question.
2. Return shipment of allegedly defective goods must only occur with our agreement.
3. For both discernable and hidden defects, as well as for missing properties in our products, we give a warranty of 6 months after receipt. We will repair, exchange, or take the products back against reimbursement of the purchase price according to our choice. Our duty of warranty does not become applicable, if the goods delivered have been handled improperly or modified.
4. Recovery of damages claimed by the customer, which result from slight negligence of contractual or legal obligations on our part, are provisionally foreclosed by Ziff.
5. 5. Recovery of damages claimed by the customer, which result from delay or impossibility of delivery on our part, are limited in amount to the purchase price of the delayed or non-delivered part - provided that no serious negligence has occurred on our part.
6. If damage has been caused by serious negligence on our part, our liability is limited to the damage foreseeable from our negligence of duty.
VI. Place of Legal Performance, Place of Jurisdiction, Data Management
1. Place of performance for the customer is HIMMELKRON, Germany. If the customer is a registered trader, the place of jurisdiction is either BAYREUTH, Germany or, with our agreement, the place of jurisdiction of the customer.
2. If some of the above conditions of sale and delivery become invalid, the general validity of the other terms and conditions remains intact. An invalid condition is replaced by another valid one that comes closest to the original condition in terms of economic purpose.
3. We are entitled to process data pertaining to our business relations with the customer, no matter whether they originate directly from our transactions with the customer or from third parties, in accordance with Bundesdatenschutzgesetz / BDSG (Federal Data Protection Act). According to §33 BDSG we have to inform you that we manage data relevant to the processing of orders and for maintaining customer relations in accordance with BDSG by way of electronic data processing.
Himmelkron, February 2007
Kulmbacher Str. 15