1. Scope of Application
These Standard Terms and Conditions for the Sale of Export Products
shall exclusively apply.
The offer, order acknowledgment, order acceptance of sale by the
Seller of any products covered herein is conditioned upon the terms
contained in this instrument. Any diverging terms and conditions of
purchase of the Buyer shall not form a part of the Agreement unless
accepted in writing by the Seller.
These conditions shall govern any future individual contracts of sale
between the Seller and the Buyer to the exclusion of any other terms
and conditions of the Buyer.
Any typographical, clerical or other error or omission in any sales
literature, quotation, price list, acceptance of offer, invoice or other
document of information issued by the Seller shall be subject to
correction without any liability on the part of the Seller.
2. Acceptance of Orders and Specifications
No order submitted by the Buyer shall be deemed to be accepted by
the Seller unless and until confirmed in writing by the Seller or the
Seller’s representative within 10 days after submission.
The quantity, quality and description of and any specification for the
products shall be those set out in the Seller’s quotation (if accepted by
the Buyer) or the Buyer’s order (if accepted by the Seller). The
documentation and brochures belonging to the offer, such as
illustrations, drawings and article descriptions are only
approximations, if they are not explicitly described as binding. Weight
and size details as well as details concerning the technical equipping
are non-binding. Details concerning the product’s stability can only be
accepted as a non-binding guideline which have been calculated from
static loading tests which have been conducted by the Seller.
The Seller reserves all rights of ownership and copyright for all cost
estimates, drawings and other documentation. Any such specification,
sales literature, quotation, cost estimates, drawings, etc. shall be
treated by the Buyer as strictly confidential and may not be made
available to third parties by the Buyer. This applies in the same
manner if and when the Buyer submits such data to the Seller.
The Buyer shall be responsible to the Seller for ensuring the accuracy
of the terms of any order submitted by the Buyer, and for giving the
Seller any necessary information relating to the products within a
sufficient time to enable the Seller to perform the contract in
accordance with its terms.
If the products are to be manufactured or any process is to applied to
the products by the Seller in accordance with a specification submitted
by the Buyer, the Buyer shall indemnify the Seller against all loss,
damages, costs and expenses awarded against or incurred by the
Seller in connection with or paid or agreed to be paid by the Seller in
settlement of any claim for infringement of any patent, copyright,
design, trade mark or other industrial or intellectual rights of any other
person which results from the Seller’s use of the Buyer’s specification.
The Seller reserves the right to make any changes in the specification
of the products which are required to conform with any applicable
statutory requirements or, where the products are to be supplied to the
Seller’s specification, which do not materially affect their quality of
performance.
In no case the Seller shall be responsible for the compliance of the
products with any local rules and regulations that may apply in the
Buyer’s country.
3. Price of the Products
The price of the products shall be the Seller’s quoted price or, where
no price has been quoted, the price listed in the Seller’s published
price list current at the date of acceptance of the order. Where the
products are supplied for export from Germany, the Seller’s published
catalogue price list shall apply.
The Seller reserves the right, by giving notice to the Buyer at any time
before delivery, to increase the price of the products to reflect
increase in the cost to the Seller which is due to any factor beyond the
control of the Seller (such as foreign exchange fluctuations, currency
regulations,
alterations of duties, significant increases in the costs of materials or
other costs of manufacture) or any change in delivery dates.
Except as otherwise stated under the terms of any quotation or in any
price list of the Seller, and unless otherwise agreed in writing between
the Buyer and the Seller, all prices are given by the Seller on an ex
works basis (INCOTERMS 2000), and where the Seller agrees to
deliver the products otherwise than at the Seller’s premises, the Buyer
shall be liable to pay the Seller’s charges for transport, packaging and
insurance.
The price is exclusive of any applicable value added tax, which the
Buyer shall be additionally liable to pay to the Seller.
4. Terms of Payment
The Buyer shall pay the price of the products in advance or according
to the terms of payment as arranged. Payments in the e-shop are to
realise according to the possible and specified terms of payment.
Payment shall be effected by interbank payment transfer only; no
cheque or bill of exchange will be considered as fulfilment of the
payment obligation.
It may be agreed between the parties that the Buyer has to deliver a
letter of credit issued by his bank (or any bank acceptable to the
Seller). In this individual case it is assumed that any letter of credit will
be issued in accordance with the Uniform Customs and Practice for
Documentary Credits, 2007 Revision, ICC Publication No. 600.
If the Buyer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Seller, the
Seller shall at his discretion be entitled to:
5. Delivery
Delivery of the products shall be made to the Buyer collecting the
products at the Seller’s premises at any time after the Seller has
notified the Buyer that the products are ready for collecting or, if some
other place for delivery is agreed by the Seller, by the Seller delivering
the products to that place.
If for any reason whatsoever the Seller fails to make delivery within
the fixed time for delivery the Buyer shall be entitled to fix a new
deadline in writing which must be reasonable after the expiry of which
the Buyer shall be entitled to terminate the Agreement. He may also
recover from the Seller any loss suffered by the Buyer by reason of
the failure of the Seller. Damages may only be claimed for by the
Buyer if the Seller by intent or gross negligence failed to fulfill the
Agreement. The Seller shall nevertheless be responsible for not
fulfilling any obligations deemed to be essential for the performance of
the Agreement.
If the Buyer fails to accept delivery on due date, he shall nevertheless
make any payment conditional on delivery as if the products had been
delivered. The Seller shall arrange for the storage of the products at
the risk and cost of the Buyer.
The Seller is not obligated to deliver the products (fulfillment of the
contract), if national or international law, in particular export control
regulations, embargoes or other sanctions imposed, prevents
delivery. The same applies, in case a required permit for delivery is
not issued. In such cases the contract is demeed to not have been
concluded insofar as it does not oblige the Seller to deliver the
products.
6. Further Delivery Conditions
Costs for express deliveries are made at Buyer’s cost.
Any special packaging will be invoiced at self-cost. Upon the
commissioning of special production and non-storable articles it must
be noted that production conditional divergences of +/- 10 can occur,
which must then lead to an adjustment of the contract by the Seller.
Products on stock will always be delivered in their original packaging.
Exceptionally agreed upon partial deliveries will be invoiced with an
additional charge of 30 %, as a minimum however with 8.00 Euro.
The Seller is authorized to make partial deliveries. Where delivery of
the products is to be made by the Seller in bulk, the Seller reserves
the right to deliver up to 3 % more or 3 % less than the quantity
ordered without any adjustment in the price, and the quantity so
delivered shall be deemed to be in the quantity ordered.
7. Transfer of Risks
Risk of damage or loss of the products shall pass to the Buyer as
follows:
8. Retention of Title
Notwithstanding delivery and the passing of risk in the products, or
any other provision of these conditions, the property in the products
shall not pass to the Buyer until the Seller has received payment in full
of the price of the products and all other products agreed to be sold by
the Seller to the Buyer for which payment is then due.
The Seller shall have absolute authority to retake, sell or otherwise
deal with or dispose of all or any part of the products in which title
remains vested in the Seller.
Until such time as the property in the products passes to the Buyer,
the Buyer shall hold the products as the Seller’s fiduciary agent, and
shall keep the products properly stored, protected and insured.
Until that time the Buyer shall be entitled to resell or use the products
in the ordinary course of its business, but shall account to the Seller
for the proceeds of sale or otherwise of the products including
insurance proceeds, and shall keep all such proceeds separate form
any moneys or properties of the Buyer and third parties.
If the products are processed or reshaped by the Buyer and if
processing is done with products that the Seller has no property in,
the Seller shall become co-owner of the products. The same shall
apply if the Seller’s products are completely reshaped and mixed with
other products.
If third parties take up steps to otherwise dispose of the products, the
Buyer shall immediately notify the Seller. If the Buyer fails to do so in
due time he will be held liable for any damages caused.
The Seller shall on demand of the Buyer release any part of the
collateral if the value of the collateral held in favour of the Seller
exceeds the value of the claims being secured by 150 %. It is to the
Seller’s decision to release those parts of the collateral suitable for
him.
9. Examination and Notice
The Buyer shall examine the products without undue delay after
delivery and in doing so check every delivery in any respect.
Obvious defects must be notified to the Seller in writing within eight
days from the date of delivery. Following this deadline the delivery is
deemed as examined or accepted. Defects which cannot be
discovered even following an in depth examination of the products
must be immediately reported in writing, at the latest eight days
following the discovery of the defect.
After the completion of one year from the date of delivery of the
products the Buyer cannot make any further claims of defects.
10. Warranties and Exclusion of Liability
The Seller warrants that all products delivered under this agreement
will be free from defects in material and workmanship, conform to
applicable specifications, and, to the extent that detailed designs have
not been furnished by the Buyer, will be free from design defects.
The Seller shall not be liable for the products being fit for a particular
purpose unless otherwise agreed upon, to which the Buyer intends to
put them.
The above warranty is given by the Seller subject to the following
conditions:
11. Force Majeure
The Seller shall not be liable for a failure to perform any of his
obligations if the failure was due to an impediment beyond his control
and that he could not reasonably be expected to have taken the
impediment into account at the time of the conclusion of the
Agreement.
12. Compliance with Export Control Regulations
The Buyer shall ensure and guarantee that the applicable national or
international laws, all applicable judicial or regulatory orders including
UN resolutions, embargoes, customs regulations, EU/US or state
sanction lists or other relevant regulations regarding the control of the
export, transfer, trade or transit of dual-use goods (hereinafter
referred to as "Export Control Regulations") are complied with if the
Buyer sells and/or ships Products delivered by the Seller.
The Buyer shall ensure by regular spot checks and other reasonable
measures that (i) applicable export control regulations are not violated
also taking into account any relevant restrictions on domestic
business and any relevant bans on circumvention (ii) products from
the Seller are not intended for use related to armaments, nuclear
technology or weapons, if and to the extent such use is subject to
prohibition or authorization, unless the necessary authorizations have
been received and that (iii) all relevant sanctions lists relating to the
trading with the entities, persons and organizations listed therein are
considered.
Where it is required for the performance of export control inspections
by authorities or the Seller, the Buyer shall, upon request, immediately
provide the Seller with all information regarding the end customer, the
final destination and the intended use of the products provided by the
Seller as well as any existing export control restrictions.
Buyer shall indemnify and hold harmless the Seller from and against
any claim, proceeding, action, fine, loss, cost and damages arising out
of or relating to any non-compliance with export control regulations by
the Buyer, and the Buyer shall compensate the Seller for all losses
and expenses resulting thereof.
13. Miscellaneous Clauses
The Seller reserves the right to improve or modify any of the products
without prior notice, provided that such improvement or modification
shall not affect the form and function of the product.
This Agreement supersedes and invalidates all other commitments
and warranties relating to the subject matter hereof which may have
been made by the parties either orally or in writing prior to the date
hereof, and which shall become null and void from the date of the
Agreement is signed.
This Agreement shall not be assigned or transferred by either party
except with the written consent of the other.
Each party shall be responsible for all its legal or other costs and
expenses incurred in the performance of its obligation hereunder.
14. Data Protection
The Seller saves and processes personal details of the Buyer
required for the transaction of business. The Seller reserves the right
to have these details processed and stored by third parties within a
contractual relationship.
15. Validity
If any stipulation in these Standard Terms and Conditions for the Sale
of Products should be invalid or becomes so, this will not affect the
validity of the other stipulations. The parties then shall agree on a
replacement stipulation that comes as close as possible to the
commercial meaning and purpose of the invalid stipulation.
16. Choice of Law; Place of Jurisdiction; Place of Performance
This Agreement shall be governed by and construed in accordance
with the U.N. Convention on Contracts for the International Sale of
Goods and regarding any remaining issues with German law and
each party agrees to submit to the jurisdiction of the courts having
jurisdiction for the Seller. This is Frankfurt am Main.
The Seller shall have the right to bring a claim before a court at the
Buyer’s principal place of business or at his discretion before any
other court being competent according to any national or international
law.
Place of performance for all obligations under this Agreement shall be
at the Seller’s place of business.