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General Terms and Conditions of Sale (V 2008)

1. Validity and the Requirement for written form

 

a) The goods and services of KREMPEL GmbH, of KREMPEL GmbH & Co. Pressspanwerk KG and of Krempel Isolierteile GmbH & Co. KG are supplied / rendered on the basis of the following terms and conditions of supply and payment alone (“General Terms and Conditions of Supply and Payment (L 2008)“). Goods and services may only be supplied / rendered under terms and conditions differing from the above in those cases in which the parties to the contract have agreed such terms and conditions expressly and in writing. Terms and conditions of business to the contrary - in particular the terms and conditions of purchase of our Buyer - are hereby expressly rejected.

 

b) The terms and conditions shall apply not only for the supply business but also for the finishing business.

 

c) Any personal data which may have been notified by the Buyer is to be processed by us in keeping with the proper business operations for the purposes of carrying out the contractual relationship in accordance with § 28 I No 1 of the Federal Data Protection Act [BDSG].

 

 

2. Order

 

All orders shall be subject to written confirmation by us. The contract shall only materialise once it has been confirmed. It shall be the content of the order confirmation alone which is definitive. Verbal agreements, agreements made over the telephone and telegraphic agreements shall only be binding in those cases in which they have been confirmed in writing subsequently, unless it is expressly agreed in a given instance that they shall be binding.

 

 

3. Supply

 

a) For all performances we shall be entitled to exceed or fall up to 10% below the specifications. We shall also be entitled to supply more or less than the ordered amount for orders based on notified defects, the supply of replacements, and in similar cases.

 

b) The standard regulations valid for the product concerned shall apply for discrepancies in terms of dimensions.

 

 

c) We shall only be under obligation to supply to the extent that our suppliers supply us with the correct goods and on time and we shall not be responsible for any delay there may be on the part of our suppliers.

 

 

4. Packing

 

a) We shall invoice all packages at cost. We shall reserve the right to decide which type of packing to use.

 

b) We shall take back transport packing for commercial transactions within Germany to the works (place of fulfilment) stated in the delivery note free of charge.

 

c) We shall not accept the costs of disposal for transport packing.

 

 

5. Special types of supply

 

a) If goods are to be supplied at a place other than the place of fulfilment the following shall apply:

 

aa) The costs of dispatch from the destination station onwards shall be for the Buyer’s account.

 

ab) We shall reserve the right to choose the dispatch route and type of dispatch.

 

ac) If delivery has been agreed free of charge, the Buyer shall consequently have to pay the freight and the secondary costs directly associated with it in advance; he may deduct these costs from the invoiced amount. The freight shall be reimbursed at the freight rates in force on the date of invoice. If the cost of freight increases as a result of subsequent changes in the method of shipment, choice of shipping route, destination or similar circumstances having an impact upon the cost of freight, the Buyer shall consequently have to pay these additional costs. If costs in freight are saved as a result of a change in destination or other circumstances having an impact upon the cost of freight, this shall not result in a credit being raised for the benefit of the Buyer.

 

ad) The goods shall not be insured by us against damage in transit. The costs of transit insurance shall be borne by the Buyer if they are expressly requested.

 

ae) Risk shall pass over to the Buyer once the goods leave our works.

 

b) If the Buyer reserves the right to specify the full particulars in detail concerning shape, dimensions or similar factors when the goods are delivered he shall have to assert his rights no later than 4 weeks prior to production. This arrangement shall also apply for call-off orders.

 

c) If goods from our stores are held ready for the Buyer’s sole use, or are sold for manufacture without a destination having been specified, the Buyer shall consequently have to take delivery of the goods within 1 week from reporting that the goods are ready.

 

 

6. Default in taking delivery of the goods

 

If the Buyer does not take delivery of the goods within 1 week from being notified that they have been completed and are ready for collection at the place of fulfilment and / or if he does not name a haulier, who collects the goods from the place of fulfilment within this period of time, he shall consequently be in default with taking delivery of the goods. In this case we shall be entitled to take the goods and store them in the factory stores at the Buyer’s expense or to have them put into store with a haulier. Then the goods will be invoiced. We shall have to store the goods with the due diligence of a prudent businessman and to insure them at the Buyer’s expense. Our obligation to supply will be fulfilled by putting the goods into store.

 

 

7. Delivery period

 

We shall not specify a fixed delivery date. Only the probable delivery dates will be specified in order confirmations. These are indications of roughly when the goods will be supplied.

 

 

8. Notification of defects

 

a) Apparent defects, i.e. legal or quality defects, over deliveries, under deliveries, or incorrect deliveries as well as the lack of a feature or durability of goods or services which may possibly have been guaranteed by us (Defect) are to be asserted in writing straight away and no later than 14 days from the receipt of the goods. Defects which are not obvious are also to be notified straight away and within 14 days from being identified at the latest.

 

b) If defects or other complaints are not asserted within the periods stipulated above in Section 8.a), warranty claims asserted against us shall be rendered invalid.

 

 

9. Warranty

 

a) If there is a defect and if the defect is notified on time in accordance with No 8 of these General Terms and Conditions of Supply and Payment within a period of 12 months from the hand-over of the supplied item, we shall either rectify the defect (subsequent performance) or supply a replacement to the Buyer, provided that the Buyer can prove that the defect already existed when risk was passed over. We shall be liable for damages resulting from loss of life, personal injury and physical harm caused by a defect within 24 months from the supplied item being handed over. In all cases the period covered by warranty for perishable goods, that is our materials which react to chemicals shall be limited to the stated minimum service life. No warranty shall be furnished for used goods.

 

b) If we have rectified defects twice or provided a replacement once or, if different defects occur, twice, and we could not rectify the existing defect as a result, as well as in the event that we refuse to carry out a necessary repair or provide a replacement without justification, or improperly delay in doing so, or if the Buyer cannot be expected to accept subsequent performance for other reasons, as well as if the preconditions of §281 II or §323 II of the German Civil Code [BGB] exist, the Buyer may, instead of having defects rectified or receiving a replacement, assert his right to legal redress by withdrawing from the contract or by reducing the price as provided for by law, as well as his right to assert compensation claims for damages or the reimbursement of his expenses, the latter in keeping with "14. Compensation for damages" in these General Terms and Conditions of Supply and Payment.

 

c) Our warranty for products we supply from other parties shall be limited to the assignment of claims which we have against the supplier of third party products. In the event that the Buyer is unable to enforce his warranty claims against the supplier of the third party products, we shall furnish a warranty in keeping with these terms and conditions.

 

d) The Buyer shall have to allow us the necessary time and opportunity by mutual arrangement to be able to rectify defects or supply a replacement.

 

e) Otherwise we shall not be obliged to rectify defects or supply a replacement if this is only possible at disproportionate expense. Such costs shall be disproportionate if they exceed 25% of the purchase price of the supplied item.

 

f) Any parts which may have been replaced under the warranty shall become our property.

 

g) If the notified defect was unjustified, we shall be entitled to demand the reimbursement by the Buyer of the costs incurred by us.

 

 

h) We shall not furnish any warranty for discrepancies from agreed condition and features if they are no more than minor and if the reduction in usability is minor as well as for damage which can be attributed to the following in particular: unsuitable, improper or incorrect use by the Buyer or third party, natural wear and tear, incorrect or negligent handling – in particular excessive loads, alternative materials, chemical or electrical action. In the event of discrepancies in volume, dimensions and thickness the following shall apply:

 

A defect shall not exist if the average value relating to the delivery as a whole is within the specified tolerances, individual measurements are less than twice the tolerance allowed or are in excess of 10% of the agreed figure and the parts of the consignment differing from the specified figure or tolerance do not exceed 5% of the overall consignment.

 

i) If the goods have been moved to a location other than the Buyer’s branch, and if, as a result, expenditure is increased, in particular transport costs, travelling expenses, labour costs and the cost of materials for subsequent performance or replacement, these increased costs do not have to be refunded to the customer as a result unless the goods have been taken to another location to be used for their intended purpose.

 

j) In so far as we have furnished a storage time guarantee, we shall be liable for damage incurred during the course of this warranty as a result of storage. This shall only apply if the Buyer has stored the goods properly and in accordance with our specifications.

 

 

10. Force majeure

 

a) We shall not be responsible for unforeseen consequences, caused by force majeure (industrial action, unforeseen operational breakdowns not resulting from our organisational shortcomings, unforeseeable shortages in raw materials, export restrictions). We shall not be liable for resultant or impossibility of performance. If a condition of force majeure exists for more than 3 months we shall consequently be entitled to withdraw from contracts.

 

b) We have to notify the Buyer if force majeure occurs in accordance with 10 a) of our own accord and upon request as soon as this is possible.

 

 

11. Delay and Impossibility of performance

 

a) Should we find ourselves in default with our obligation to supply as a result of ordinary negligence, the Buyer may consequently demand compensation amounting to 0.5% of the total value of that part of the overall consignment which cannot be used or which cannot be used on time and properly in accordance with the contract for each commenced week of delay. However, the total amount of compensation is not to exceed 5%. This amount of compensation may be set lower or higher if we can prove that the damages incurred by the Buyer were lower, and higher, if the Buyer can prove that the damages he has incurred were higher.

 

b) Irrespective of the right to withdraw from the contract if there are defects (See 9 Warranty) the Buyer may only make use of his right to withdraw from the contract in the event we are to blame for being in breach of contract if we are unable to render performance for once and for all (Impossibility), or if we render our performance late.

 

c) In the event that we are in default, withdrawal from the contract or compensation for damages instead of performance shall moreover require the Buyer to have set us a reasonable period of at least 4 weeks in advance in writing and in doing so he must have made expressly clear that he will withdraw from the contract and / or assert a claim for damages in the event of non-compliance with the period set for delivery. Once this period has expired the Buyer shall be obliged, upon being called upon by us to do so, to state whether he is continuing to insist upon delivery or whether he will assert a claim for damages or withdraw from the contract. If the Buyer fails to make any such statement within a reasonable period set by us, the Buyer shall no longer be entitled to reject the consignment and may no longer withdraw from the contract and may not assert a claim for damages instead of performance.

 

d) A set period named in Section 11.c) may be dispensed with if we refuse to render the performance owed under the contract in all seriousness and for once and for all or if there are certain circumstances extant which substantiate the immediate withdrawal from the contract after weighing up the interests of both parties.

 

e) The Buyer may not withdraw from the contract before performance is due, nor may he withdraw from the contract in the event of a breach of contract by us which is no more than minor. In the final analysis withdrawal will not be allowed if the Buyer is solely or predominantly responsible for the circumstances which would entitle him to withdraw from the contract or if a circumstance occurs for which we are not to blame while the Buyer is in default with taking delivery of a consignment.

 

f) 14. Compensation for damages of these General Terms and Conditions of Supply and Payment shall apply for a compensation claim for damages.

 

 

12. Reservation of title

 

The goods shall remain our property until all the accounts already created by the business relationship have been paid; regardless of on whatever legal reason they were based. In so far as according to the law of the country in which the goods subject to reservation of title are located specific regulations have to be observed for the reservation of title to be valid, the Buyer shall be responsible for compliance with these regulations. If, according to the law of the country in which the goods subject to reservation of title are located, it is not possible to supply goods and retain title to them, the Buyer shall consequently ensure that we are granted the supplier’s assurances to the goods subject to reservation of title normal in that country. We shall be under no obligation to supply for as long as in the latter case stated above there is no proof that reservation of title or the supplier’s assurance normal in the country concerned has been effectively granted to us.

 

The Buyer shall be allowed to process the goods and sell them in a normal business transaction taking into consideration the following provisions.

 

a) The Buyer’s authority to process and resell the goods subject to reservation of title shall lapse if he stops making his payments, or if a petition is filed to initiate bankruptcy or composition proceedings.

 

b) The Buyer processing the goods for us shall not acquire ownership of the new thing in accordance with § 950 of the German Civil Code [BGB] by processing the goods subject to reservation of title. If the goods subject to the reservation of title are processed, mixed or combined with other things belonging to the Buyer or a third party, we shall consequently acquire the co-ownership of the new thing in proportion to the invoiced value of the goods subject to reservation of title to the invoiced value of the other processed items. If, as a result of processing, mixing or combining our title to the goods subject to the reservation of title is adversely affected under the law of the country in which the goods subject to reservation of title are located, the Buyer shall undertake here and now in keeping with his power of disposal to procure co-ownership of the new product for us amounting to the value of the goods subject to reservation of title taking into consideration all the regulations applicable for such a legal change and in particular to ensure that our rights are properly registered, in so far as this is required for these rights and their seniority to be valid against third parties.

 

c) The Buyer shall hereby assign the accounts with all secondary rights created by a resale of the goods subject to reservation of title to us, and to be more precise, as a proportion, also in so far as the goods have been processed, mixed and combined and we have acquired co-ownership to the invoiced value. We shall be entitled to part of this assignment equal to a fraction of the purchase price account in proportion to the ratio between the invoiced value of the goods subject to reservation of title and the invoiced value of the item. We hereby accept these assignments. If under the law of the country applicable to the Buyer’s account created by a resale specific regulations have to be observed for the assignment to be valid against third parties, in particular with regard to registration and / or notification, the Buyer shall consequently be responsible for compliance with these regulations.

 

d) The Buyer is entitled to collect the accounts assigned to us until this authorisation is revoked. The collection authorisation shall also lapse without express revocation if the Buyer stops making his payments. Upon request the Buyer is obliged to give us a precise list of the accounts to which he is entitled with the names and addresses of his buyers, the amount of the individual accounts, invoice date etc. and show his buyers the assignment and pass over to us all the information required to assert a claim for the assigned accounts.

 

e) The reservation of title shall also continue to exist in those cases in which individual accounts have been put into a current account and the balance is struck and recognised. We shall not only be entitled to a reservation of title for the recognised and separate final balance of account but also for the individual items entered in the current account.

 

f) We shall release supplied items which have been paid for in full here and now, if the security existing as a result of the reservation of title exceeds the account to be secured by more than 20%.

 

g) The Buyer must not pledge the supplied item nor assign it by bill of sale as a security. The Buyer must notify us straight away in the event of levy of execution, confiscation or other disposals by third parties.

 

h) The Buyer shall keep the goods subject to reservation of title in safekeeping for us. He shall have to insure them against fire, theft, and water damage. The Buyer hereby assigns to us for the amount of our claim his compensation claims for damages against insurance companies or other parties obliged to compensate him in the event that an insurance claim is made. We hereby accept the assignment.

 

 

13. Objection of uncertainty, Offsetting and Right of retention

 

a) If we become aware of a significant deterioration in the financial status of the Buyer or if the Buyer falls into arrears with a payment, we shall consequently be entitled to demand that all outstanding invoices, including those which are not yet due for payment, are paid immediately and to ask for payment in cash before goods are delivered for all outstanding consignments. The Buyer is entitled to avert the demand for payment in advance by furnishing an appropriate security. If the payment demanded is not made and no security is furnished we shall consequently be entitled to reject the fulfilment of the contract or to withdraw from the contract having set an appropriate period of time for either payment to be made or for a security to be rendered.

 

b) We shall be under no obligation to supply any more consignments under any current contract before all invoiced amounts payable have been paid in full. In addition to this we shall reserve all rights.

 

c) The Buyer is not entitled to offset counter-claims unless they are not contested or have been declared final and absolute in a court of law. The Buyer shall only be entitled to a right of retention to the extent that it is based upon the same contractual relationship as our accounts.

 

 

14. Compensation for damages

 

We shall only be liable to the Buyer

 

- in the event of gross negligence and intent by our executive bodies, senior employees and ordinary assistants for the full amount of the damages;

 

- depending upon the reason for each breach of important contractual obligations (cardinal obligations) caused by intent or negligence, i.e. contractual duties the fulfilment alone of which makes it possible to fulfil the contract properly and upon compliance with which the Buyer may normally rely,

 

- in the event of breach of cardinal obligations attributable to ordinary negligence only for the actual reimbursement of damage typically foreseeable; otherwise we shall be liable for the full amount of damage.

 

Otherwise we shall have no liability. Liability on account of intent, malice and loss of life, physical harm and personal injury as well as under the German Product Liability Act shall not be affected by this however.

 

 
 

15. Payments

 

a) In the absence of a specific agreement payment shall have to be made within 14 days to qualify for a prompt payment discount of 2% or within 30 days straight net. The period allowed for payment shall in each case start on the date of invoice.

 

b) The acceptance of drafts shall be subject to our prior consent and shall only be allowed on account of payment. Discount fees and other charges are to be remitted by the Buyer immediately upon presentation of the draft. We shall not accept any liability for drafts, cheques, or other papers submitted on account of payment being presented on time or being protested.

 

c) We shall be entitled to demand 5% interest from the Buyer from the date payment is due onwards. Once the Buyer is in default we shall be entitled to demand interest amounting to 8% above base rate. We shall reserve the right to assert a claim for any default damages there may be in excess of this amount.

 

 

16. Applicable law / lNCOTERMS

 

a) The contract shall be governed by the law of the Federal Republic of Germany. The United Nations convention on contracts concerning the International sale of goods dated 11.04.1980 shall not apply.

 

b) The latest version of INCOTERMS in force shall apply.

 

 

17. Place of jurisdiction

 

a) The place of fulfilment shall be the registered office responsible in a specific case for a delivery and stated by us on the order confirmation (Vaihingen/Enz, Kuppenheim, Waldshut, Thalheim or Zwönitz).

 

b) The courts having jurisdiction where our head office (Vaihingen/Enz) is based shall have sole jurisdiction for all disputes arising from this contract entered into by registered businesses or disputes concerning the validity of this contract. The Plaintiff may also take legal action at the courts having jurisdiction where the Defendant is based.

  

 

Status: September 2008

General Terms and Conditions of Sale (V 2008)

1. Validity and the Requirement for written form

 

a) The goods and services of KREMPEL GmbH, of KREMPEL GmbH & Co. Pressspanwerk KG and of Krempel Isolierteile GmbH & Co. KG are supplied / rendered on the basis of the following terms and conditions of supply and payment alone (“General Terms and Conditions of Supply and Payment (L 2008)“). Goods and services may only be supplied / rendered under terms and conditions differing from the above in those cases in which the parties to the contract have agreed such terms and conditions expressly and in writing. Terms and conditions of business to the contrary - in particular the terms and conditions of purchase of our Buyer - are hereby expressly rejected.

 

b) The terms and conditions shall apply not only for the supply business but also for the finishing business.

 

c) Any personal data which may have been notified by the Buyer is to be processed by us in keeping with the proper business operations for the purposes of carrying out the contractual relationship in accordance with § 28 I No 1 of the Federal Data Protection Act [BDSG].

 

 

2. Order

 

All orders shall be subject to written confirmation by us. The contract shall only materialise once it has been confirmed. It shall be the content of the order confirmation alone which is definitive. Verbal agreements, agreements made over the telephone and telegraphic agreements shall only be binding in those cases in which they have been confirmed in writing subsequently, unless it is expressly agreed in a given instance that they shall be binding.

 

 

3. Supply

 

a) For all performances we shall be entitled to exceed or fall up to 10% below the specifications. We shall also be entitled to supply more or less than the ordered amount for orders based on notified defects, the supply of replacements, and in similar cases.

 

b) The standard regulations valid for the product concerned shall apply for discrepancies in terms of dimensions.

 

 

c) We shall only be under obligation to supply to the extent that our suppliers supply us with the correct goods and on time and we shall not be responsible for any delay there may be on the part of our suppliers.

 

 

4. Packing

 

a) We shall invoice all packages at cost. We shall reserve the right to decide which type of packing to use.

 

b) We shall take back transport packing for commercial transactions within Germany to the works (place of fulfilment) stated in the delivery note free of charge.

 

c) We shall not accept the costs of disposal for transport packing.

 

 

5. Special types of supply

 

a) If goods are to be supplied at a place other than the place of fulfilment the following shall apply:

 

aa) The costs of dispatch from the destination station onwards shall be for the Buyer’s account.

 

ab) We shall reserve the right to choose the dispatch route and type of dispatch.

 

ac) If delivery has been agreed free of charge, the Buyer shall consequently have to pay the freight and the secondary costs directly associated with it in advance; he may deduct these costs from the invoiced amount. The freight shall be reimbursed at the freight rates in force on the date of invoice. If the cost of freight increases as a result of subsequent changes in the method of shipment, choice of shipping route, destination or similar circumstances having an impact upon the cost of freight, the Buyer shall consequently have to pay these additional costs. If costs in freight are saved as a result of a change in destination or other circumstances having an impact upon the cost of freight, this shall not result in a credit being raised for the benefit of the Buyer.

 

ad) The goods shall not be insured by us against damage in transit. The costs of transit insurance shall be borne by the Buyer if they are expressly requested.

 

ae) Risk shall pass over to the Buyer once the goods leave our works.

 

b) If the Buyer reserves the right to specify the full particulars in detail concerning shape, dimensions or similar factors when the goods are delivered he shall have to assert his rights no later than 4 weeks prior to production. This arrangement shall also apply for call-off orders.

 

c) If goods from our stores are held ready for the Buyer’s sole use, or are sold for manufacture without a destination having been specified, the Buyer shall consequently have to take delivery of the goods within 1 week from reporting that the goods are ready.

 

 

6. Default in taking delivery of the goods

 

If the Buyer does not take delivery of the goods within 1 week from being notified that they have been completed and are ready for collection at the place of fulfilment and / or if he does not name a haulier, who collects the goods from the place of fulfilment within this period of time, he shall consequently be in default with taking delivery of the goods. In this case we shall be entitled to take the goods and store them in the factory stores at the Buyer’s expense or to have them put into store with a haulier. Then the goods will be invoiced. We shall have to store the goods with the due diligence of a prudent businessman and to insure them at the Buyer’s expense. Our obligation to supply will be fulfilled by putting the goods into store.

 

 

7. Delivery period

 

We shall not specify a fixed delivery date. Only the probable delivery dates will be specified in order confirmations. These are indications of roughly when the goods will be supplied.

 

 

8. Notification of defects

 

a) Apparent defects, i.e. legal or quality defects, over deliveries, under deliveries, or incorrect deliveries as well as the lack of a feature or durability of goods or services which may possibly have been guaranteed by us (Defect) are to be asserted in writing straight away and no later than 14 days from the receipt of the goods. Defects which are not obvious are also to be notified straight away and within 14 days from being identified at the latest.

 

b) If defects or other complaints are not asserted within the periods stipulated above in Section 8.a), warranty claims asserted against us shall be rendered invalid.

 

 

9. Warranty

 

a) If there is a defect and if the defect is notified on time in accordance with No 8 of these General Terms and Conditions of Supply and Payment within a period of 12 months from the hand-over of the supplied item, we shall either rectify the defect (subsequent performance) or supply a replacement to the Buyer, provided that the Buyer can prove that the defect already existed when risk was passed over. We shall be liable for damages resulting from loss of life, personal injury and physical harm caused by a defect within 24 months from the supplied item being handed over. In all cases the period covered by warranty for perishable goods, that is our materials which react to chemicals shall be limited to the stated minimum service life. No warranty shall be furnished for used goods.

 

b) If we have rectified defects twice or provided a replacement once or, if different defects occur, twice, and we could not rectify the existing defect as a result, as well as in the event that we refuse to carry out a necessary repair or provide a replacement without justification, or improperly delay in doing so, or if the Buyer cannot be expected to accept subsequent performance for other reasons, as well as if the preconditions of §281 II or §323 II of the German Civil Code [BGB] exist, the Buyer may, instead of having defects rectified or receiving a replacement, assert his right to legal redress by withdrawing from the contract or by reducing the price as provided for by law, as well as his right to assert compensation claims for damages or the reimbursement of his expenses, the latter in keeping with "14. Compensation for damages" in these General Terms and Conditions of Supply and Payment.

 

c) Our warranty for products we supply from other parties shall be limited to the assignment of claims which we have against the supplier of third party products. In the event that the Buyer is unable to enforce his warranty claims against the supplier of the third party products, we shall furnish a warranty in keeping with these terms and conditions.

 

d) The Buyer shall have to allow us the necessary time and opportunity by mutual arrangement to be able to rectify defects or supply a replacement.

 

e) Otherwise we shall not be obliged to rectify defects or supply a replacement if this is only possible at disproportionate expense. Such costs shall be disproportionate if they exceed 25% of the purchase price of the supplied item.

 

f) Any parts which may have been replaced under the warranty shall become our property.

 

g) If the notified defect was unjustified, we shall be entitled to demand the reimbursement by the Buyer of the costs incurred by us.

 

 

h) We shall not furnish any warranty for discrepancies from agreed condition and features if they are no more than minor and if the reduction in usability is minor as well as for damage which can be attributed to the following in particular: unsuitable, improper or incorrect use by the Buyer or third party, natural wear and tear, incorrect or negligent handling – in particular excessive loads, alternative materials, chemical or electrical action. In the event of discrepancies in volume, dimensions and thickness the following shall apply:

 

A defect shall not exist if the average value relating to the delivery as a whole is within the specified tolerances, individual measurements are less than twice the tolerance allowed or are in excess of 10% of the agreed figure and the parts of the consignment differing from the specified figure or tolerance do not exceed 5% of the overall consignment.

 

i) If the goods have been moved to a location other than the Buyer’s branch, and if, as a result, expenditure is increased, in particular transport costs, travelling expenses, labour costs and the cost of materials for subsequent performance or replacement, these increased costs do not have to be refunded to the customer as a result unless the goods have been taken to another location to be used for their intended purpose.

 

j) In so far as we have furnished a storage time guarantee, we shall be liable for damage incurred during the course of this warranty as a result of storage. This shall only apply if the Buyer has stored the goods properly and in accordance with our specifications.

 

 

10. Force majeure

 

a) We shall not be responsible for unforeseen consequences, caused by force majeure (industrial action, unforeseen operational breakdowns not resulting from our organisational shortcomings, unforeseeable shortages in raw materials, export restrictions). We shall not be liable for resultant or impossibility of performance. If a condition of force majeure exists for more than 3 months we shall consequently be entitled to withdraw from contracts.

 

b) We have to notify the Buyer if force majeure occurs in accordance with 10 a) of our own accord and upon request as soon as this is possible.

 

 

11. Delay and Impossibility of performance

 

a) Should we find ourselves in default with our obligation to supply as a result of ordinary negligence, the Buyer may consequently demand compensation amounting to 0.5% of the total value of that part of the overall consignment which cannot be used or which cannot be used on time and properly in accordance with the contract for each commenced week of delay. However, the total amount of compensation is not to exceed 5%. This amount of compensation may be set lower or higher if we can prove that the damages incurred by the Buyer were lower, and higher, if the Buyer can prove that the damages he has incurred were higher.

 

b) Irrespective of the right to withdraw from the contract if there are defects (See 9 Warranty) the Buyer may only make use of his right to withdraw from the contract in the event we are to blame for being in breach of contract if we are unable to render performance for once and for all (Impossibility), or if we render our performance late.

 

c) In the event that we are in default, withdrawal from the contract or compensation for damages instead of performance shall moreover require the Buyer to have set us a reasonable period of at least 4 weeks in advance in writing and in doing so he must have made expressly clear that he will withdraw from the contract and / or assert a claim for damages in the event of non-compliance with the period set for delivery. Once this period has expired the Buyer shall be obliged, upon being called upon by us to do so, to state whether he is continuing to insist upon delivery or whether he will assert a claim for damages or withdraw from the contract. If the Buyer fails to make any such statement within a reasonable period set by us, the Buyer shall no longer be entitled to reject the consignment and may no longer withdraw from the contract and may not assert a claim for damages instead of performance.

 

d) A set period named in Section 11.c) may be dispensed with if we refuse to render the performance owed under the contract in all seriousness and for once and for all or if there are certain circumstances extant which substantiate the immediate withdrawal from the contract after weighing up the interests of both parties.

 

e) The Buyer may not withdraw from the contract before performance is due, nor may he withdraw from the contract in the event of a breach of contract by us which is no more than minor. In the final analysis withdrawal will not be allowed if the Buyer is solely or predominantly responsible for the circumstances which would entitle him to withdraw from the contract or if a circumstance occurs for which we are not to blame while the Buyer is in default with taking delivery of a consignment.

 

f) 14. Compensation for damages of these General Terms and Conditions of Supply and Payment shall apply for a compensation claim for damages.

 

 

12. Reservation of title

 

The goods shall remain our property until all the accounts already created by the business relationship have been paid; regardless of on whatever legal reason they were based. In so far as according to the law of the country in which the goods subject to reservation of title are located specific regulations have to be observed for the reservation of title to be valid, the Buyer shall be responsible for compliance with these regulations. If, according to the law of the country in which the goods subject to reservation of title are located, it is not possible to supply goods and retain title to them, the Buyer shall consequently ensure that we are granted the supplier’s assurances to the goods subject to reservation of title normal in that country. We shall be under no obligation to supply for as long as in the latter case stated above there is no proof that reservation of title or the supplier’s assurance normal in the country concerned has been effectively granted to us.

 

The Buyer shall be allowed to process the goods and sell them in a normal business transaction taking into consideration the following provisions.

 

a) The Buyer’s authority to process and resell the goods subject to reservation of title shall lapse if he stops making his payments, or if a petition is filed to initiate bankruptcy or composition proceedings.

 

b) The Buyer processing the goods for us shall not acquire ownership of the new thing in accordance with § 950 of the German Civil Code [BGB] by processing the goods subject to reservation of title. If the goods subject to the reservation of title are processed, mixed or combined with other things belonging to the Buyer or a third party, we shall consequently acquire the co-ownership of the new thing in proportion to the invoiced value of the goods subject to reservation of title to the invoiced value of the other processed items. If, as a result of processing, mixing or combining our title to the goods subject to the reservation of title is adversely affected under the law of the country in which the goods subject to reservation of title are located, the Buyer shall undertake here and now in keeping with his power of disposal to procure co-ownership of the new product for us amounting to the value of the goods subject to reservation of title taking into consideration all the regulations applicable for such a legal change and in particular to ensure that our rights are properly registered, in so far as this is required for these rights and their seniority to be valid against third parties.

 

c) The Buyer shall hereby assign the accounts with all secondary rights created by a resale of the goods subject to reservation of title to us, and to be more precise, as a proportion, also in so far as the goods have been processed, mixed and combined and we have acquired co-ownership to the invoiced value. We shall be entitled to part of this assignment equal to a fraction of the purchase price account in proportion to the ratio between the invoiced value of the goods subject to reservation of title and the invoiced value of the item. We hereby accept these assignments. If under the law of the country applicable to the Buyer’s account created by a resale specific regulations have to be observed for the assignment to be valid against third parties, in particular with regard to registration and / or notification, the Buyer shall consequently be responsible for compliance with these regulations.

 

d) The Buyer is entitled to collect the accounts assigned to us until this authorisation is revoked. The collection authorisation shall also lapse without express revocation if the Buyer stops making his payments. Upon request the Buyer is obliged to give us a precise list of the accounts to which he is entitled with the names and addresses of his buyers, the amount of the individual accounts, invoice date etc. and show his buyers the assignment and pass over to us all the information required to assert a claim for the assigned accounts.

 

e) The reservation of title shall also continue to exist in those cases in which individual accounts have been put into a current account and the balance is struck and recognised. We shall not only be entitled to a reservation of title for the recognised and separate final balance of account but also for the individual items entered in the current account.

 

f) We shall release supplied items which have been paid for in full here and now, if the security existing as a result of the reservation of title exceeds the account to be secured by more than 20%.

 

g) The Buyer must not pledge the supplied item nor assign it by bill of sale as a security. The Buyer must notify us straight away in the event of levy of execution, confiscation or other disposals by third parties.

 

h) The Buyer shall keep the goods subject to reservation of title in safekeeping for us. He shall have to insure them against fire, theft, and water damage. The Buyer hereby assigns to us for the amount of our claim his compensation claims for damages against insurance companies or other parties obliged to compensate him in the event that an insurance claim is made. We hereby accept the assignment.

 

 

13. Objection of uncertainty, Offsetting and Right of retention

 

a) If we become aware of a significant deterioration in the financial status of the Buyer or if the Buyer falls into arrears with a payment, we shall consequently be entitled to demand that all outstanding invoices, including those which are not yet due for payment, are paid immediately and to ask for payment in cash before goods are delivered for all outstanding consignments. The Buyer is entitled to avert the demand for payment in advance by furnishing an appropriate security. If the payment demanded is not made and no security is furnished we shall consequently be entitled to reject the fulfilment of the contract or to withdraw from the contract having set an appropriate period of time for either payment to be made or for a security to be rendered.

 

b) We shall be under no obligation to supply any more consignments under any current contract before all invoiced amounts payable have been paid in full. In addition to this we shall reserve all rights.

 

c) The Buyer is not entitled to offset counter-claims unless they are not contested or have been declared final and absolute in a court of law. The Buyer shall only be entitled to a right of retention to the extent that it is based upon the same contractual relationship as our accounts.

 

 

14. Compensation for damages

 

We shall only be liable to the Buyer

 

- in the event of gross negligence and intent by our executive bodies, senior employees and ordinary assistants for the full amount of the damages;

 

- depending upon the reason for each breach of important contractual obligations (cardinal obligations) caused by intent or negligence, i.e. contractual duties the fulfilment alone of which makes it possible to fulfil the contract properly and upon compliance with which the Buyer may normally rely,

 

- in the event of breach of cardinal obligations attributable to ordinary negligence only for the actual reimbursement of damage typically foreseeable; otherwise we shall be liable for the full amount of damage.

 

Otherwise we shall have no liability. Liability on account of intent, malice and loss of life, physical harm and personal injury as well as under the German Product Liability Act shall not be affected by this however.

 

 
 

15. Payments

 

a) In the absence of a specific agreement payment shall have to be made within 14 days to qualify for a prompt payment discount of 2% or within 30 days straight net. The period allowed for payment shall in each case start on the date of invoice.

 

b) The acceptance of drafts shall be subject to our prior consent and shall only be allowed on account of payment. Discount fees and other charges are to be remitted by the Buyer immediately upon presentation of the draft. We shall not accept any liability for drafts, cheques, or other papers submitted on account of payment being presented on time or being protested.

 

c) We shall be entitled to demand 5% interest from the Buyer from the date payment is due onwards. Once the Buyer is in default we shall be entitled to demand interest amounting to 8% above base rate. We shall reserve the right to assert a claim for any default damages there may be in excess of this amount.

 

 

16. Applicable law / lNCOTERMS

 

a) The contract shall be governed by the law of the Federal Republic of Germany. The United Nations convention on contracts concerning the International sale of goods dated 11.04.1980 shall not apply.

 

b) The latest version of INCOTERMS in force shall apply.

 

 

17. Place of jurisdiction

 

a) The place of fulfilment shall be the registered office responsible in a specific case for a delivery and stated by us on the order confirmation (Vaihingen/Enz, Kuppenheim, Waldshut, Thalheim or Zwönitz).

 

b) The courts having jurisdiction where our head office (Vaihingen/Enz) is based shall have sole jurisdiction for all disputes arising from this contract entered into by registered businesses or disputes concerning the validity of this contract. The Plaintiff may also take legal action at the courts having jurisdiction where the Defendant is based.

  

 

Status: September 2008


Contact - ANGLO

Anglo-American Vulcanized Fibre Ltd.
Clovelly Road · Bideford 
Devon ·  EX39 3EX
United Kingdom

 

Tel. +44 (0) 1237 475501

Fax +44 (0) 1237 479879

info(at)anglo-krempel.com

 

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