General Terms and Conditions

I Conclusion of contract

The following conditions of sale apply to all our offers, deliveries and services, including information and consultation. They also apply to future business relations with customers, even if we do not refer to them expressly on conclusion of contract.

Further conditions – especially general purchase conditions of our customers – do not apply, even if we do not expressly object to them on presentation. Oral agreements only apply after our written confirmation. This also applies to the renunciation of the written form requirement.

Our offers are subject to change, unless a period of commitment is expressly agreed. The contractual relationship is only formed, when we send a confirmation of the order to the customer, which corresponds to his/her order in the substantial components. Should our delivery take place without confirmation in advance, the contract is formed by rendering the service, whereby in regards to the contractual conditions our invoice is simultaneously considered the order confirmation.

The electronic signature according to the respective state of the art and according to the legal regulations for that is admissible for an effective conclusion of contract. It replaces the written form requirement and also maintains validity in case of alterations of the contract.

II Prices

The prices are net prices and apply “ex Works” (INCOTERM 2000), company headquarters Neuwied, excluding packaging and transport insurance.

For small quantities we reserve the right to charge minimum quantity charges.

After expiration of one month since order confirmation, we are entitled, due to increases in the labour, manufacturing and/or materials costs, to increase the prices. In case of significant price increases, the customer is entitled to withdraw from the purchase contract. In this case, services within the scope of custom-made products rendered by us already, have to be reimbursed.

III Property rights, models, and matrixes

Drawings, models, and samples included in the offers remain our property. Rights of use in them are not transferred to the customer. They must only be made accessible to third parties with our consent und must be handed back to us immediately, if no contractual relationship is formed.

In case of custom-made products, the customer has to check to what extent the components ordered are protected by property rights of third parties. In case rights of third parties are impaired with the execution of the order placed by the customer, the customer shall indemnify us against any claims asserted by third parties.

For international business, we do not accept any liability for the freedom of the goods from any rights or claims of third parties unknown to us. The examination of the property rights situation in the country of destination lies within the responsibility of the customer. If the purchaser knows about existing property rights, he/she shall inform us about that immediately.

We remain the proprietor of all development results in conjunction with our delivery items. Rights of use are thus not transferred to the customer. Furthermore, we reserve the right to unlimited use of all models and tools manufactured by us or on behalf of us in conjunction with the respective customer order, which remain our property.

IV Shipment and passage of risk

Place of fulfilment is the place of delivery according to the agreed INCOTERM. The risk of loss or deterioration by accident passes to the customer with the delivery to the place of fulfilment. This is independent of a possible assumption of costs for transport and packaging.

Packaging is determined by us according to competent discretion. The customer is charged with the costs for packaging.

An insurance of the transport risk is taken out upon request of the customer only. The customer is likewise charged with the costs for the transport insurance.

V Deadlines and terms

The deadlines and terms stated for our deliveries and services are non-binding, unless otherwise expressly agreed in writing. The terms only start once there is an agreement about the details of execution required for rendering our service, the customer has supplied the information, documents, and materials to be obtained by him/her and – if advance payment or a down payment was agreed – has paid the agreed price or the down payment, respectively. Non-cooperation as well as requests for alterations by the customer result in an appropriate postponement of the deadlines or extension of the terms, respectively.

Unpredictable and unavoidable events (e.g. war, war-like conditions, lack of energy or raw materials, sabotage, strike) as well as any other business disruptions or official actions, which we are not responsible for, release us from the delivery and service obligation for the duration of the event, even if there has been a delay existing already. Through this, terms and deadlines are extended to an appropriate extent. This also applies to late or incorrect deliveries or services from our suppliers, which we are not responsible for.

In case of non-compliance with a binding term for reasons we are responsible for, the customer may – provided he/she can prove, that a damage resulted from the delay – claim a compensation for delay for each completed week of the delay of 0.5 pc up to the amount of a total of 5 pc of the value of that part of the delivery, which we have fallen behind with. Claims of the customer exceeding this are excluded in all cases of delayed delivery, even after expiry of an extension possibly set by us. This does not apply, where e.g. in cases of intent, gross negligence or damage to life, body and health there is mandatory liability. The right of the customer to withdraw after futile expiry of an extension set by us remains unaffected.

VI Warrantee

We give a warrantee within the scope of the following regulations that the products delivered and services rendered are not subject to defects at the time of passage of risk of the delivery or service, which defects would eliminate or substantially reduce the value or suitability for the common use or the use assumed according to the contract.

If on passage of risk our services and deliveries are subject to defects, we will, at our discretion, mend without charge or re-deliver or re-render, respectively. Wear due to normal use and defects caused by improper use, improper handling, improper storage as well as non-compliance with the manufacturer, assembly or operating instructions, are excluded from the warrantee. The warranty claim becomes void in case of improper handling by the customer as well as by third parties instructed by him/her.

Unless expressly agreed otherwise in writing, any details about our products, in particular figures, drawings, technical data and references to standards and specifications included in our offers and brochures, do not represent any guarantee for condition and/or durability in terms of §§ 443, 276 BGB [German Civil Code], but are only descriptions or identifications. The same applies to the delivery of specimens and samples.

The customer must examine the goods immediately after delivery, even if specimens or samples were handed over in advance, and immediately inform us in writing about defects or quantity variance detected. Otherwise the goods are considered accepted, unless there are defects, which were not detectable during this examination.

The warrantee period is 12 months and starts with the handover of the products to the customer at the place of fulfilment, at the latest with the delivery to the customer. If work performance, including work deliveries about non-fungibles, is the subject matter of the contract, the warrantee period starts with the acceptance in terms of § 640 BGB.

We take over the costs accruing for the purpose of mending (in particular transport, shipping, work, and material expenses). If these expenses are increased, because the objects were transported to another location than the delivery location of the customer after our delivery, he/she has to bear the additional costs, unless the transfer corresponds the intended use. If we decide for mending a defect, the customer has to enable the execution of work immediately and provide us with the objected goods for examination and processing.

Costs resulting from possibly unjustified claims are borne by the customer. These will be charged according to expense.

Should the rectification or replacement delivery fail, the customer is entitled to claim reduction of payment or withdraw from the contract without prejudice for possible claims for damages.

Warrantee claims are excluded in case of only unsubstantial deviations from the agreed condition and only unsubstantial impairment of usability.

Unless determined otherwise in these sales and delivery conditions, further claims are excluded.

VII Representative authority

Our field representatives are only authorized by us for accepting orders, but not for accepting further declarations of intent by the customer, and also not for concluding sales contracts or giving further declarations in respect of legal relations for us.

VIII Payments

Any payments are due 30 days after sending the delivery and issuing the invoice to the customer and shall be paid without any deductions and free of transaction charges to the seller’s designated account. Decisive for clearance is the receipt of the payment. Bills of exchange and cheques will only be accepted on account of a respective agreement and only on account of performance. In these cases, clearance only takes place, once we finally have the respective amount at our disposal. Any bill of exchange, cheque, and discount charges as well as any further costs exclusively shall be borne by the customer.

Default of payment is given 30 days after maturity and receipt of the invoice. If the time of receipt of the invoice is unclear, the debtor falls into arrears at least 30 days after maturity and receipt of the delivery or service.

Should the customer fall into arrears with a payment, we are entitled, at our discretion, to charge default interest to the amount of 8 percentage points over the base lending rate or replacement of the exactly calculated damage resulting for us from the delay. § 353 HGB remains unaffected.

The customer is only entitled to a right of offsetting or retention, if his/her counterclaims are legally ascertained, undisputed or accepted by us.

Assignment of any claims of the customer against us to third parties requires for its effectiveness our express written consent. § 354a HGB remains unaffected.

If after conclusion of a contract a substantial deterioration of the financial circumstances of the customer becomes known to us (e.g. application for opening insolvency proceedings, negative credit reports or in case of a delay in payment), we are entitled to perform pending deliveries or services against advance payment or an appropriate security only, whereby possible terms of delivery or service are respectively extended or deadlines are postponed, respectively. If delivery has already taken place, we may demand immediate payment of our invoice.

IX Reservation of ownership

We reserve the ownership in the goods delivered as well as the goods resulting from their processing (“reserved goods”) until the complete payment of all receivables we are entitled to by the customer now and in future – even if these become justified after conclusion of the contract only. For current account receivables, the reserved ownership secures our balance claims.

Processing is permitted during proper business operations only and will be executed for us by the customer, without obligations for us resulting from this. If processing takes place by connection with other components, delivered either under simple or likewise under extended reservation of ownership, we acquire co-ownership in the new products in relation of the gross purchase price agreed between the customer and us to the respective value of the other components. Now already, the customer transfers to us his/her co-ownership shares resulting from possible connection, mixture or commingling of the reserved goods with other components.

The customer will keep the products we solely or jointly own as a custodian for us with commercial diligence. If he/she takes out insurances for the reserved goods, he/she transfers his/her title to the respective insurance benefits to us now already, in case of joint ownership in the relation of our share in the joint property to all other joint property shares.

The customer is entitled to disposition of the reserved goods only in case of disposal during proper business transactions and when it is ensured, that the receivables resulting from that pass over to us. He/she is not entitled to other dispositions of any kind (in particular pledging and transfer of security interest).

The receivables the customer is entitled to from the disposition or another legal ground concerning the reserved goods, he/she herewith transfers to us as a security. In case the transferred receivables are included in a current account, the customer herewith transfers to us part of his/her balance claim including the final balance to the amount of his/her disposition claim.

If he/she disposes of the reserved goods after processing or after connection, mixing or commingling with other products, or together with other products, then the assignment of receivables to the amount of that part is considered agreed, which corresponds to the gross price agreed between the customer and us plus a safety margin of 20 % of this price. The customer is entitled to collect the receivables assigned to us.

We can revoke the authorisation to dispose of the reserved goods and the authorisation to collect the receivables assigned to us any time, if the customer does not fulfil his/her obligations towards us properly.

The customer is obliged to give us any requested information about the reserved goods and the assigned receivables any time and to hand over to us the respective documents. Upon our request, the customer is to inform the debtors about the assignment.

We have to be informed immediately about accesses or claims of third parties (including any execution measures) to the reserved goods or assigned receivables, including the handover of the respective documents. The customer will immediately point out to third parties our retention of ownership and the assignment of security. The costs of defending against such accesses shall be borne by the customer.

If the customer falls into arrears or infringes his/her obligations resulting from these conditions, we are – without prejudice to our further rights – entitled to take back the reserved products, to disclose the assignment of security, and to utilize the reserved goods and the assigned receivables for the purpose of satisfaction of debts due against the customer. In this case, the customer will immediately grant us or our representatives access to the reserved goods and hand them over. Our handover demand or an execution garnishment initiated by us shall not be considered as a withdrawal from the contract.

X Further claims for damages

Claims for damages of the customer, irrespective on which legal grounds, in particular because of the infringement of duties from the contractual obligation and from unauthorised action are excluded.

This does not apply in those cases, in which we, or our vicarious agents are charged with intent or gross negligence. The exclusion of liability also does not apply in those cases, in which we, or our vicarious agents are mandatorily liable due to damage to life, body, or health or due to the warrantee of the presence of a property. In case of infringement of substantial contractual obligations, in the fulfilment of which the customer may trust to a special degree, we are also liable in cases of slight negligence.

In case of slight negligent infringement of substantial contractual obligations as well as intent and gross negligence of such employees and other vicarious agents, who are not executive staff, we are only liable to the amount of the normally predictable damage considering all decisive and noticeable circumstances.

Liability according to the Product Liability Act remains unaffected.

A change in the burden of proof to the disadvantage of the customer is not connected with the above regulations.

XI Miscellaneous

German law applies to our contracts and these General Conditions of Sale, excluding the Law on International Sale of Goods (CISG).

The possible ineffectiveness of individual regulations in these sales conditions does not affect the effectiveness of the remaining regulations. The contractual parties replace possibly ineffective regulations with such ones being closest to the ineffective ones in regards to their purpose.

Exclusive jurisdiction for any disputes resulting from and in conjunction with this contract is our company headquarters. We are, however, entitled to chose another jurisdiction.

The customer declares him-/herself in agreement and informed, that any data from the business relationship concerning him/her are saved within the scope of electronic data processing.

09/2009 © SKYLOTEC GmbH