General Supply Conditions Sales Agreement
for Commercial Transactions - Domestic/International
§ 1 Scope
1. The following conditions shall apply exclusively and to all offers and supplies. Conflicting conditions of the customer are not binding, even if the supplier does not explicitly contradict or if the supplier executes the delivery without reservations, unless the conflicting conditions are expressly designated as binding in writing by the supplier.
2. The supplier maintains title and copyright with regard to all quotations, drawings and other documents. Such documents shall not be made available to third parties without the supplier’s prior consent.
3. With regard to the scope of delivery the written order confirmation of the supplier shall be authoritative, in case of an offer of the supplier with a time limit and a timely acceptance the offer shall be authoritative, unless an order confirmation is submitted in time. Collateral agreements and changes to the agreement at the time of concluding the contract shall require the written confirmation of the supplier or his agent. After entering into the contract, oral agreements may only be entered into between the customer and the supplier or their respective agents.
4. The supplier reserves the right during the delivery time to provide for design and shape changes of the good delivered resulting from technological improvements or requirements of the legislator, unless the delivery good is substantially modified and the modifications may not be reasonably accepted by the customer.
§ 2 Prices
1. In the absence of a specific agreement to the contrary, prices are ex works including loading ex works, however, excluding packaging. Additionally, value added tax in the respective statutory amount has to be added. The supplier does not accept to take the packaging back.
2. All services in connection with the installation of a filter – regardless of whether the installation takes place in a ship or at any other place – shall not be included in the price.
§ 3 Terms of Payment
1. Unless expressly agreed upon otherwise, payments shall be made in cash without any deductions at the suppliers domicile promptly upon the invoice date or the submission of the dispatch note. With regard to delay in payment statutory rules shall apply. If the customer is in default with payments, the supplier shall be entitled to request payment of default interest in the amount of 8 % per year over the respective base discount rate.
2. The customer shall only be permitted to offset if counter-claims have been confirmed by a final judgment, are ready for a decision, are undisputed or are acknowledged by the supplier. Furthermore, the customer shall only have a right of retention if his counter-claim results from the same contractual relationship.
§ 4 Delivery Time
1. The start of the delivery time indicated by the supplier requires the clarification of all technical issues.
2. The compliance with the delivery obligation by the supplier requires the timely and orderly performance of the customer’s duties. The right to raise the defense of lack of performance of the contract remains reserved.
3. If the customer is in default of acceptance or if he culpably violates other cooperation duties, the supplier may request the reimbursement of the damage sustained by supplier in this regard, including possible additional costs. Further claims remain reserved.
4. In so far as the requirements of para. 3 are met, the risk of the accidental perishing of the product or the risk of an accidental deterioration of the product shall pass to the customer at the time the customer is in default of acceptance or in default of debtor.
5. The supplier shall be liable pursuant to statutory provisions if the underlying sales agreement is a transaction in which time is of the essence within the meaning of sec. 286 para. 2 no. 4 German Civil Code or sec. 376 German Commercial Code. The supplier shall also be liable pursuant to statutory provisions if, because of a default in delivery as to which the supplier is liable, customer is entitled to claim that his interest in a further performance of the contract no longer exists.
6. Furthermore, the supplier shall be liable pursuant to statutory provisions in so far as the default in delivery is based on a breach of contract, as to which the supplier is liable because of his intentional or grossly negligent conduct; a fault by an agent or by a person employed by the supplier in the performance of his obligation shall be attributed to the supplier. If the default in delivery is not caused by an intentional breach of contract as to which the supplier is liable, the damages to be paid by the supplier shall be limited to the foreseeable damage which does typically occur.
7. The supplier shall also be liable pursuant to statutory provisions if the default in delivery as to which supplier is liable results from a culpable violation of substantial contractual duties; in this case a claim for damages shall be limited to the foreseeable damage which does typically occur.
8. If the dispatch is delayed on the customer’s demand, the customer will be charged with the costs caused by the storage following a period of one month after the notice of dispatch, when stored in the work of the supplier, these costs amount to at least 0.5 % of the invoice amount for each month.
9. Further statutory claims and rights of the customer shall remain unaffected.
§ 5 Passage of Risk
1. Unless dealt with otherwise in the order confirmation, the parties agree on a delivery ex works, i. e. the passage of risk shall occur at the latest with the shipment of the good to the customer, even in case partial deliveries are made or if the supplier has taken over other services, such as the shipment costs or the delivery or the installation. Upon request of the customer, at his expense, the delivery may be insured by the supplier against theft, destruction, transport, fire and water damages as well as other insurable risks.
2. If the delivery is delayed for reasons as to which the supplier is liable, the risk shall pass to the customer at the date of the dispatch readiness.
3. Partial deliveries shall be permitted.
§ 6 Reservation of Title
1. The supplier reserves the title with regard to the goods until all claims of the supplier against the customer resulting from the business relationship as of the date the agreement is entered into, including all claims resulting from subsequent orders, additional orders or orders of spare parts. This shall also apply if some or all claims of the supplier are combined in a current account and if a new balance is stricken and accepted.
2. In case of a breach of contract by the customer, particularly in case of default with payment, the supplier shall have the right, upon submitting a warning letter with a reasonable deadline, to take the delivery good back. The return of the good to the supplier shall be deemed as the rescission from the contract.
3. The customer shall inform the supplier promptly in writing of pledges or other acts of third parties and shall submit all necessary information to enable the supplier to initiate a claim pursuant to sec. 771 German Code of Civil Procedure. If the third party is not able to reimburse to the supplier court costs and out-of-court costs with regard to a claim pursuant to sec. 771 German Code of Civil Procedure, the customer shall be liable for such costs.
4. The customer shall be entitled to resell the good in the ordinary course of business. However, the customer hereby assigns to the supplier all claims up to the amount of the final invoice amount (including value added tax) agreed upon with the supplier, which claims the customer obtains from reselling against the further customer or third parties, regardless of whether the good subject to a reservation of title is sold after the processing or not. The customer shall be entitled, even after the assignment, to collect the debts. The right of the supplier to collect the debts himself shall remain unaffected. The supplier agrees not to collect the debts as long as the customer complies with his payment duties properly, as long as the customer is not in default with payments and as long as no application to adjudicate insolvency or composition proceedings are filed or a suspension of payment exists. In this case, however, the supplier may request that the customer informs the supplier of the debts assigned and the respective debtors, that the customer shall submit all information necessary to collect the debts, submits all necessary documents and he shall inform the debtor (third party) of the assignment.
5. The processing and manufacturing of the good by the customer shall always be made in favor of the supplier. If the good is processed together with other goods not delivered by the supplier, the supplier shall obtain joint title with regard to the newly manufactured good proportionally to the objective value of the good as compared to the value at the time of the processing of the other goods processed. Otherwise, the same rules applicable to the delivery of a good sold subject to a reservation of title shall apply to the good being processed.
6. If the good is inseparably mixed with other goods not owned by the supplier, the supplier shall obtain co-ownership of the new good proportionally to the objective value of the good as compared to the value of the mixed goods at the time of the mixing. If the mixing occurs in a way that the good of the customer is regarded as the main good, it shall be deemed agreed that the customer shall grant co-ownership proportionally to the supplier. The customer shall keep this sole or co-ownership in favor of the supplier.
7. The suppliers agrees to release securities obtained by him, upon request of the customer, in so far as the value of the securities, as compared to the claims not yet settled, exceeds such claims by more than 10 %; the selection of the securities to be released shall be made by the supplier.
§ 7 Liability for Defects
1. The claiming of liability for defects by the customer requires that he has complied with his duty to examine and object to defects orderly pursuant to sec. 377 German Commercial Code.
2. If the good delivered is defective, the supplier may, at his option, provide for a subsequent delivery as removal of the defect or delivery of another good free of defects. In case of a removal of the defect, the supplier shall bear the expenses up to the amount of the sales price.
3. If the subsequent delivery fails, the customer may, at his option, request the rescission of the contract or the reduction of the sales price.
4. The supplier shall be liable pursuant to statutory provisions in so far as the customer claims damages based on intentional or grossly negligent conduct of the supplier, including intentional or grossly negligent conduct of the agents of persons employed by the debtor in the performance of his obligation. The liability for damages shall be limited to the foreseeable damage which would typically occur, unless the supplier has acted intentionally.
5. The supplier shall be liable pursuant to statutory provisions if he has culpably violated a substantial contractual duty; in this case the liability for damages shall be limited to the foreseeable damage usually occurring in such cases.
6. The liability for a culpable injury to life, body or health shall remain unaffected; this shall also apply to the mandatory liability pursuant to the Products Liability Act.
7. Unless anything to the contrary has been regulated above, the liability shall be excluded. This applies particularly to: inappropriate or improper use by the customer or third parties; defective installation or putting into operation or transport by the customer or third parties; use of improper equipment or substitute material; defective construction work, improper building site or chemical, electrochemical or electrical influences.
8. The limitation period for liability claims shall be 12 months as of the passage of risk.
9. The limitation period in case of a delivery recourse pursuant to secs. 478, 479 German Civil Code shall remain unaffected; such limitation period shall be five years upon the delivery of the defective good.
§ 8 Confidentiality
The parties agree to keep confidential all information received with regard to the other party, particularly regarding documents, models and tools, which have been explicitly designated as confidential or as to which the confidentiality results from the circumstances, without any time limit and the parties shall refrain from preparing copies, submitting such confidential information or using this information outside the scope of the contract. The parties agree to impose a respective confidentiality duty upon their respective persons employed in the performance of the obligation and their agents.
§ 9 Place of Performance and Jurisdiction
1. The place of performance shall be the suppliers work, unless anything to the contrary results from the order confirmation.
2. With regard to all disputes resulting out of or in relation to the contractual relationship, a law suit shall exclusively be initiated at the competent court at the principal place of business of the supplier, provided the customer is a merchant, a legal person pursuant to public law or a public law trust. The supplier shall also be entitled to file a law suit at the principal place of business of the customer.
3. The substantive law of the Federal Republic of Germany shall apply. The provisions of the Vienna UN Convention on the International Sale of Goods of April 11, 1980, shall not apply.