General terms and conditions of sale of Etscheid Anlagen GmbH, 53577 Neustadt/Wied                                                                                          Status: 03/2010

 

§ 1          General scope of application

 

(1)   Our terms and conditions of sale apply exclusively; we do not accept conflicting or differing conditions of our terms and conditions of sale from the buyer unless we agreed to your legitimacy explicitly and in written form. Our terms and conditions of sale also apply even if we accept the delivery of the buyer implicitly and aware of conflicting or differing conditions of the buyer.

(2)   All agreements between us and the buyer, for the purpose of the execution a contract have to be stipulated in this contract.

(3)   Our terms and conditions of sale only apply for merchants in terms of §§ 1-7 HGB.

(4)   Our terms and conditions of sale also apply for all dealings with the buyer in the future.

 

§ 2           Quotation – bidding documents

 

(1)   Should the purchase order qualify as a quotation in terms of § 145 BGB,  the company Etscheid can accept it within 4 weeks.

(2)   For images, drawings, calculations and other documentations we reserve title and copyrights; they must not be made accessible to a third parties. This applies in particular to written documents, which are declared as confidential; their disclosure to third parties is subject to our explicit written consent.

 

§ 3          Prices – terms and conditions of payment

 

(1)   Unless otherwise stated, in the order confirmation, all our prices are quoted ex works. Packaging will be invoiced separately.

(2)   The legal value added tax is not included in the prices; it will be stated separately in the invoice at the statutory level on the day of billing.

(3)   The refund of the cash discount is subject to a special written agreement.

(4)   Unless otherwise specified in the order acknowledgement, the purchasing price shall become due and payable net (without any deduction) within 30 days of date of invoice. If the buyer defaults on payment, we shall be entitled to demand default interest in the amount of 4% above the applicable bank rate of Deutsche Bundesbank p.a. Should we be able to detect  a higher damage caused by default, we are entitled to insist on it. The buyer is however entitled to verify that as a result of the default of payment, none or a considerably lower claim or damage has resulted for us.

(5)   The buyer is only entitled to compensation in terms of §§ 387 ff BGB, if his third party claims are legally established, undisputed or accept by us. Furthermore he is in terms of § 273 BGB authorized to exercise his legal claim to the extent of his third party claim being based on the same contractual relationship.

 

§ 4          Delivery Time

 

(1)   The start of the delivery period is subject to clarification of all technical issues.

(2)   Should we get into default of delivery for reasons we have to account for, the buyer is entitled to ask for a valued default compensation of 3% of the value of the contract up to of a maximum 10% of the value of the contract, for every full week of default.

(3)   Should the buyer give us an adequate additional extension including a threat of cancelation, after we have got into default, at the expiry of this extension, the buyer is entitled to withdraw from the contract. The buyer is only entitled to indemnity titles resulting from non performance in the amount of the predictable damage, if the delay is based on intent or gross negligence or a serious breach of duty. The liability for indemnity titles are limited to 50% of the damage occurred.

(4)   The limitations of liability from par. 2 and par. 3 do not apply, should a commercial short interest have been stipulated; The same will apply if the buyer can assert that his execution of the contract has got into discontinuance due to a default accounted by us.

(5)   The compliance of our conditions of delivery requires duly and proper implementation of the commitments of the buyer.

(6)   Should the buyer fail to accept the delivery or breach other obligations to co-operate, we are entitled to ask for claims arising including possible additional costs. In this case, the risk of an accidental loss or an accidental deterioration of the object of purchase crosses over to the buyer at this point in time, that he gets into default of acceptance.

 

§ 5          Transfer of Risk

 

(1)   If not otherwise stated in the acceptance of order, we stipulate delivery ex works.

(2)  Should the buyer wish so, we will insure the consignment for transportation; the resulting additional costs will be paid by the buyer.

 

§ 6          Warrant of merchantability

 

(1)   The rights of defects of liability of the buyer assume that he accordingly discharged his obligations of examination and liability according to §§ 377, 378 HGB.

(2)   Should exist an absence of the object of purchase accounted by us, we are entitled to a removal of defects or compensation delivery by our choice. In the case of the removal of defects we are obliged to bear the necessary expenditures for the purpose of the removal of defects, especially transport-, road-, labor- and material costs; in as far they do not increase due to the goods of purchase having been passed to a different location other than the place of fulfillment.

(3)   Should the removal of defects or the compensation delivery fail, the buyer is entitled to demand by his choice a cancellation of the contract or an according depreciation.

(4)   In as far nothing else results from the following (par. 5 and par. 6),  more extensive claims of the other contracting party – no matter on which legal grounds – shall be excluded. We therefore disclaim all warranty for damages which do not affect the delivered item itself; in particular we shall not be liable for lost profit or other financial loss sustained by the buyer.              

(5)   In as far the cause of damage results from intent or gross negligence, we are liable in the extent of the legal requirements. This also applies, if the buyer claims damages for non-performance due to lack of an assured property according to § 281 BGB.

(6)   If culpably violate significant contractual obligation or a fundamental obligation, the liability is limited to the standard predictable damages that are typical for this type of contract; For the rest it is excluded in accordance with par. 4.

(7)   The warranty period shall be six months calculated from the passing of the risk. This period is a period of limitation and also applies for claims to replace consequential loss caused by a defect as far as no claims are exercised as a result of claims in civil law.

 

§ 7          General liability

 

(1)   Further liability on the basis of compensation for damages beyond § 6 par. 4 till par. 6  - regardless of the legal nature of the asserted claims. – is excluded,

(2)   The settlement according to par. 1 does not apply to claims according to §§ 1, 4 ProdHaftG. In as far as the liability limitation according to § 6 par. 6 does not apply to claims from producer’s liability, according to § 823 BGB, our liability shall be limited to the compensation from the insurer. As far as this is not or not completely entered into we are not withstanding only liable to the limit of the indemnity of our insurance.

(3)   The regulation according to par. 1 also shall not apply to initial incapability or reasonable impossibility.

(4)   To the extent that our liability has been ruled out or limited, this shall also apply to the personal liability of our employees, workers, fellow-workers, legal representatives and delegated agents.

 

§ 8          Reservation of Proprietary Rights

 

(1)   We reserve the right of ownership to the supplied goods until the receipt of all payments stated in the delivery contract. In the event of any breach of contract by the buyer, in particular any delay in payment, we shall have the right to take back the item of sale.   Reclaiming the items of sale does not imply withdrawal from the contract, unless we have expressly declared this in writing. The recovery of the purchased item by us shall always indicate cancellation of the contract. We are authorized to sale the purchased item after retraction; the proceeds of sale are to be deducted from the commitments of the buyer – minus appropriate costs for recovery.

(2)   The buyer is obligated according to § 277 BGB to treat the purchased goods carefully; he is especially obligated to sufficiently insure them at his own cost against fire and water damage and theft at the original value. In as far as maintenance and inspection work is necessary; the buyer must conduct this at their own expense on a timely basis.

(3)   In event of seizure or other interventions by third parties the buyer must notify us immediately in writing so that we may file a suit in accordance with § 805 ZPO. In as far as the third party is not capable to reimburse us for the judicial and extrajudicial in and out of court costs of a claim according to § 771 ZPO the buyer shall be liable for our loss.

(4)   The buyer is authorized to resell the purchased goods in the ordinary course of business; but even now, he assigns to us all claims in the amount of the final amount of the invoice (including VAT), which he is entitled to from resale against his customers or third parties, and this independent of the fact whether the purchased goods were resold without or after processing. The buyer remains authorized for collection of these receivables even after assignment. Our authority of collecting the receivables ourselves remains unaltered by this. We shall however, undertake to refrain from collecting the claim as long as the buyer meets his payment obligation from the proceeds received, does not fall into arrears and in particular provided there is not a bankruptcy, composition or insolvency proceedings have been filed or cessation of payments occurs. If this is the case, however, we can demand that the buyer make their accrued claims and their debtors known to us, report all necessary information for collection, hand over the corresponding documentation and inform the debtors (third parties) of the surrender.

(5)   Processing or transformation of the purchased goods by the customer is in each case performed for us. The buyer’s expectancy right in the merchandise shall continue in the reformed article.

(6)   Should our parts be inseparably mixed with other items that do not belong to us, we acquire co-ownership of the new item which corresponds with the value of the item with the reserved title compared to the other mixed items at the time of combination. If mixing is performed in such a manner that the item of the customer is to be regarded as the principle item, then it is deemed agreed that the customer transfers to us appropriate co-ownership. The customer keeps in safe custody the so created sole ownership or co-ownership for us.

(7)   The customer also assigns to us the receivables for securing our claims against him, which are created against a third party by the combination of the purchased goods with real property.

(8)   We promise to release the securities to which we are entitled on the request of the buyer, as long as the realizable value of our securities exceeds our claims to be secured by more than 10% or the nominal sum by more than 50%; it will be our responsibility to select the securities to be released.

 

§ 9          Jurisdiction – Place of Fulfillment

 

(1)   Should the buyer be a general merchant our business location is the court of jurisdiction; we are however entitled to sue the buyer at the court of his domicile.

(2)   If not otherwise stated in the order confirmation, our business location is the place of fulfillment.

 

    

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