1. Execution of the contract
All deliveries and services rendered by us are subject exclusively to our General Conditions of Delivery and Sale, which are valid for all orders. Any deviations shall be valid only if they have been expressly recognized by us in writing. General conditions of business or purchasing conditions for the other party to the contract are not valid. Auxiliary oral agreements are invalid. Modifications and amendments to the contract require our written confirmation. Our offers are non-binding. The contract shall be deemed to have been concluded if, upon the receipt of the order, we send a written confirmation of the order. Our General Conditions of Delivery and Sale shall be expressly acknowledged at the receipt of the written order confirmation, or signing on the delivery note, or receipt of the invoice, whichever comes first.
The prices, in the absence of any other agreement, shall be valid ex the seller’s works and without loading. Our prices are based on the wage and material costs valid at the time. If wage levels should be modified due to collectively negotiated contracts in the industry or on the basis of agreements within our company or other costs necessary to render the services, such as those for materials, energy, transportation, subcontracted work, financing, etc., then we are entitled to adjust the prices accordingly. We reserve the right to change prices in the case of re-orders.
The prices quoted are without packing. Packing shall be effected in the fashion standard for the trade in order to avoid damage to the merchandise under normal shipping conditions while in transit to the predetermined destination; packing shall be at the purchaser’s expense and shall be accepted for return only upon agreement. The purchaser shall be responsible for proper disposal of shipping, sales and returnable packaging.
Payments shall be made in accordance with the agreed terms of payment. In so far as no terms of payment have been agreed upon, payment shall be made ten (10) days following the receipt of the invoice, deducting a two percent (2%) discount, and the latest within thirty (30) days following the invoice date, without deduction of discount. Justified complaints do not entitle the purchaser to retain the entire invoice amount but only a reasonable part of the invoice amount as has been agreed with us in writing. If the purchaser delays making an agreed payment or other services, then we are entitled either to insist upon the fulfillment of the contract and
a) delay the fulfillment of our own obligations until such time as the delayed payments or other services delayed have been rendered
b) effect an appropriate extension of the term of delivery
c) declare the entire unpaid purchase price to be due and payable
d) as of the due date to charge interest on arrears in the amount of seven percent (7%) above the actual base rate of interest applied by the European Central Bank
or, upon the granting of an appropriate grace period, to declare our withdrawal from the contract. The purchaser, should he fall in arrears, shall reimburse any dunning and recovery costs which may arise.
Any offsetting of our claims with counterclaims, regardless of their nature, is excluded.
4. Retention of ownership
The merchandise shall remain our property until the complete satisfaction of all the purchaser’s financial obligations with respect to our company. The purchaser shall comply with all formalities in order to ensure our retention of ownership. In the case of garnishment or other claims, the purchaser is obliged to indicate our retention of ownership and shall notify us immediately. If the merchandise which we deliver is combined with other merchandise which we do not own, then we shall become the co-owner of the items thus newly created, in proportion of the invoice value of our merchandise thus combined. In so far as our retention of ownership ceases to exist as a result of the joining, blending or processing of our merchandise, the purchaser transfers to us, now and in advance, his sole ownership or co-ownership rights, whereby a gratis custodianship relationship may be substituted for the transfer.
5. Warranty and liability
The purchaser shall notify us, immediately and in writing, about any defect which may be discovered. He shall demonstrate that the defect was present at the time of transfer of the merchandise. We are entitled to make good on warranty claims by way of repair, exchange, reducing the price or issuing a credit note, at our option. Defects in a portion of a delivery do not entitle the purchaser to file a complaint on the delivery as a whole. The warranty period shall be six (6) months. The purchaser shall assume the costs and the hazards of shipping. Return shipments shall be accepted only following our written consent. We shall not be liable for any costs for the rectification of defects undertaken by the purchaser himself. The warranty shall not be applicable to defects resulting from poor maintenance, resulting from repairs or modifications carried out improperly and/or without our written consent, and resulting from normal wear and tear.
We assume no warranty especially for defects which, for example, result from improper or incorrect use, faulty assembly and/or maintenance effected by the purchaser or third parties, normal wear and tear, faulty or careless treatment and in particular excessive loading, improper operating resources, and chemical or atmospheric influences.
Any and all of the purchaser’s claims for damages shall be limited to the invoice amount of the object which is the object of this contract.
The purchaser is obliged to deliver the mold components to be etched in a completely dismantled state. If the purchaser delivers workpieces for etching which are not completely dismantled, we shall not be liable for damage arising during dismantling prior to etching and/or reassembly after etching. The etching of molds can result in changes to the dimensions and weights of the molded products when compared with the non-etched situation. Liability for such changes is hereby expressly excluded.
We also exclude all liability for damage caused in the course of modifications or repair work carried out, without prior approval on our part, by the purchaser or by a third party.
Entitlements of the purchaser to replacement as a result of ordinary negligence are excluded. The damaged party shall prove the existence of gross negligence. Claims for replacement shall lapse six (6) months following cognizance of the damage and the perpetrator of the damage and in any case two (2) years following the rendering of the service or delivery. Complaints may be based only on defects in materials and/or workmanship which have been proven to exist at the moment of transfer of risk and which shall preclude or substantially reduce fitness for use as per the contract. We assume no liability for faults in materials contained in objects which the purchaser has placed at our disposal. This applies in particular when the material made available to us is not suitable for taking a grain or exhibits surfaces which are otherwise not suitable for our processing.
The situation in which an object placed at our disposal for our processing cannot be processed at all or only with disproportionate difficulty entitles us to withdraw from the contract, excluding any liability on our part. If the above-mentioned difficulty becomes apparent only after the expenditure of labor and costs, then the costs thus arising shall be borne by the purchaser.
Where we deliver or manufacture products as per the purchaser’s documentation, the purchaser warrants that no proprietary rights of third parties are infringed upon. Should we incur disadvantages of any type due to the infringement of proprietary rights, we are entitled to demand reimbursement from the purchaser.
The German Product Liability Law (Produkthaftungsgesetz) applies. Claims for redress filed against us by the party to the contract or third parties from the “Product Liability” section in the spirit of the Product Liability Law are excluded unless the party entitled to recourse proves that the error was within our sphere of influence and was perpetrated with gross negligence at a minimum.
6. Plans, documentation
Plans, sketches, cost estimates and all other documentation as well as samples, catalogs, brochures, illustrations and the like shall always remain the intellectual property of our company and are subject to the safeguarding provisions provided for by law. Every utilization and in particular the utilization, duplication, reproduction, dissemination and surrender to third parties, publication and demonstration shall be done only with our express consent.
7. Shipping – Transfer of risk
If not otherwise agreed upon, the merchandise is deemed to have been sold “ex works” (EXW). Delivery shall always be at the purchaser’s risk, even though the prices shall have been agreed upon as “carriage paid”. If there is any delay in the purchaser’s accepting the merchandise, then we are entitled either to store the merchandise on our premises, at the costs and risk of the purchaser, and at the same time to insist on fulfillment of the contract or, after specifying a reasonable grace period, to withdraw from the contract and to otherwise utilize the merchandise.
8. Delivery period
In the absence of any agreement to the contrary, the delivery period shall commence at the latest of the following points in time:
a) the date of the order confirmation.
b) the date at which the purchaser satisfies all the technical, commercial and financial prerequisites to which he is obliged by agreement.
c) the date upon which the seller receives a down payment to be made prior to the delivery of the merchandise and/or the date upon which a payment guarantee is issued.
Partial and advance deliveries may be executed. Reasonable and objectively justified modifications in our obligations to supply and deliver and in particular reasonable delays in delivery beyond the delivery period on our part are permissible.
9. Court of venue, applicable law, place of fulfillment
The court of venue shall be the court bearing judicial responsibility for the situation in Solingen, Germany. We retain, however, the right to file suit in a court having jurisdiction over the other party to the contract. The place of fulfillment for services and payment is the location of our company even though the transfer, as per the agreement, takes place at another location. The application of German law is agreed. The contract language is German. The applicability of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10. Supplementary terms
Should individual conditions be or become invalid by law, then this shall not affect the validity of the other conditions in the contract. The parties undertake to replace the invalid condition with another valid condition which approximates the business content of the invalid condition.