EXAKT Advanced Technologies GmbH:
General Conditions of Sale and Supply
1. General Provisions, Quotes, Conclusion of Contract
Supplies, Performances and Quotes made by EXAKT Advanced Technologies GmbH ("Vendor") take place exclusively on the basis of these Conditions of Sale and Supply. Thus these apply for all future business relations, even where these are not again explicitly agreed. The Vendor specifically contradicts the General Terms and Conditions of the contractual partner ("purchaser"); they shall only be applicable to the vendor if the latter agrees to them in writing. These Conditions of Sale and Supply thus apply exclusively even if the vendor carries out the supply to the purchaser without reservation in full awareness of contrary conditions or conditions at variance with these conditions.
The written contract (Email and Fax shall suffice) including these General Conditions of Sale and Supply shall reflect all the agreements between the Contracting Parties concerning the subject matter of the contract. Verbal undertakings on the part of the vendor prior to the conclusion of the contract are not legally binding and verbal agreements between the Contracting Parties are superseded by the written contract unless anything arises from them that continues to make them legally binding.
Additions and amendments to the relevant agreements, including these General Conditions of Sale and Supply shall require the written form in order to take effect. With the exception of directors or proxy holder, the vendor's employees are not entitled to make any verbal agreements at variance with the above. Forwarding via fax or email shall suffice in order to comply with the requirements of the written form.
Details from the vendor regarding the object of the contract (e.g. weights, measurements, use, capacity, tolerances and technical data) as well as illustrations of this (e.g. diagrams and illustrations) are only approximate, unless the purpose of the contract requires an exact conformity. They are not guaranteed attributes, rather descriptions or labelings of the supply or performance. Normal discrepancies (customary in trade), those that arise due to legal requirements or that represent technical improvements as well as the replacement of component parts with parts to an equal value are admissible as long as they do not affect the usability for the purpose intended under the contract
The purchaser may only assign any claims arising from the contracts with prior written agreement from the vendor.
Quotes from the vendor remain subject to confirmation unless otherwise stated by the vendor. Where a binding quote exists the prices quoted there apply for a maximum of four months unless a shorter validity period is stated on a case by case basis. If a purchaser's order qualifies as a quote in accordance with S. 145 of the German Civil Code (Bürgerliches Gesetzbuch or BGB), then the vendor can accept this within two weeks. The acceptance must be in writing. The vendor is free to accept or refuse a purchaser's offer, unless otherwise agreed.
The vendor's prices are determined upon confirmation of the order. The prices apply for the range of performances and supplies listed in the contract notes. Additional or special services are invoiced separately. Unless otherwise agreed, prices are in EUROs plus packaging costs, statutory VAT, and, in the case of exports abroad, customs duty as well as charges and other official levies. These are to be borne by the purchaser, as are any increases arising between the conclusion of the contract and the supply of the goods. Unless otherwise agreed, the prices apply ex works in accordance with subparagraph 3.1.
Where the vendor specifically grants a discount on a case by case basis, this discount applies exclusively for that supply by the vendor as confirmed in the contract note. (this regulation does not apply for authorized dealers' trade discount).If the vendor grants a specific volume discount on a case by case basis based on an estimated or predicted purchase quantity, the discount can be taken back in proportion to the extent that the volume actually purchased in the specified period remains below the estimated or predicted volumes.
3. Delivery, Delivery Time, Impediments to Performance, Delay in Delivery
Unless otherwise agreed, the delivery is "ex works the vendor's location in Norderstedt" in accordance with Incoterms 2010. If an insurance policy is taken out at a purchaser's express wish, the latter must bear the cost of this itself.
The vendor is entitled to make appropriate partial deliveries to the extent that this is deemed acceptable to the purchaser.
The vendor's obligation to supply is subject to the precondition that it in turn is supplied punctually and correctly by its upstream suppliers.
Delivery deadlines or periods that can be agreed as binding or non-binding, require the written form. Where dispatching was agreed, delivery periods and deadlines refer to the point in time at which goods were transferred to the hauler, carrier or other third party responsible for transport.
The vendor can - without prejudice to its rights arising from delay on the part of the purchaser - demand an extension to the agreed binding deadlines for deliveries and performances by the length of time that the purchaser does not fulfill its contractual obligations to the vendor (e.g. a payment in advance as agreed in the contract is not made by the purchaser).
If the vendor, for reasons of force majeure or other events beyond its influence or control - for example war, political unrest, official decrees, loss of opportunity to import or export, operational disruptions, strikes, lock-outs, floods, fire or theft - cannot make deliveries in accordance with the contract - either temporarily or in the longer term - the vendor is released from its delivery
obligations for the duration and to the extent of the effect of such events, and shall also be entitled to withdraw from the contract without becoming liable to claims for compensation for damages or other claims by the purchaser.
4. Obligation of Inspection and Notification of Defects
Claims for defects and other contractual claims of the purchaser that are based on a fault of the product exist only if the purchaser has properly fulfilled the obligation to give notification of defects according to sec.377 of the German Commercial Code (Handelsgesetzbuch or HGB)
To specify this obligation, the following applies:
Defects recognizable without examination (clearly obvious defects) are to be reported via a note on the delivery note or waybill or on the consignment receipt.
Defects that are or can be discovered in the context of a feasible inspection carried out in the normal course of business by a prudent businessman in a purchaser role (recognizable defects) must be reported by the purchaser immediately and at the latest within 5 days after delivery in the sense of S. 377 of the German Commercial Code.
In particular it is feasible in the normal course of business to extend the inspection to ensure that the goods are identical; ensure the quantity and functionality of the products delivered, whereby the products (except for replacement parts, wear parts and consumables for other products) must be put into operation for testing purposes. If and to the extent that the purchase consists of a delivery of large numbers of replacement parts, accessories, wear parts and/or consumables, the examination must take place on a sample basis (in representative sensible samples, spread across the total quantity).
Where products can only be operated as agreed after a briefing from one of the vendor's employees, commissioning may only take place after the briefing. In this sense a delivery as outlined above shall not be deemed to take place before this briefing happens.
Hidden defects, in other words such defects as do not, or would not, come to light in a feasible inspection carried out in the normal course of business in accordance with subparagraphs 4.2 and 4.3, must be reported at the latest by the end of the fifth day following their discovery, but up to no later than the expiration of the warranty period, whichever is the sooner.
A defect is discovered in this sense, if the purchaser or persons active in his/her capacity and from whom a forwarding of the appropriate information could be expected, detect the defect or would have detected it had that person acted in a proper manner (S. 347 I German Commercial Code).
After adaptation, processing or reshipment of the goods by the purchaser, the purchaser is only entitled to enforce its rights arising out of a hidden defect (subparagraph 4.4).
Notification must arrive with the vendor in writing or by fax or email before expiration of the relevant notice period. Notification of defects by telephone does not suffice. The type and extent of the alleged defect must be absolutely clear from the notification. The purchaser is duty bound to have the rejected goods readily available for inspection by the vendor, its upstream suppliers or an expert appointed by the vendor.
Goods not notified in the appropriate manner or by the end of the required period of notice are considered as approved and accepted.
Should a product show a defect in the sense of S. 434 of the German Civil Code then the purchaser has the right to the statutory warranty claims under Sections 434 et seq. of the German Civil Code with the following modifications:
Warranty rights exist only when the purchaser has fulfilled its obligation to give notification of defects in accordance with subparagraph 4 above.
Should a product show a defect in this sense the purchaser must in the first instance exercise its primary right with regard to the vendor to subsequent fulfilment. The vendor then has the right to choose whether to perform this subsequent fulfilment via a rectification of the defects or a replacement. In order to make this choice and in order to carry out the type of subsequent fulfilment as chosen, the purchaser must set the vendor an appropriate deadline. Further warranty rights only apply in case of an effectless expiration of the appropriate deadline or in case of a failure of the subsequent fulfillment and only to the extend ruled in these General Terms and Conditions.
Where the purchaser is an authorized dealer of the vendor, he takes on all work associated with the subsequent fulfillment at its own cost (e.g. replacement of defective parts or construction of new equipment).
The warranty period is one year and commences with the delivery of the product. In deviation from this, for the rolls and bands of three roll mills the warranty period is 3 months from delivery. In the cases where EXAKT is contractually obliged to provide a briefing, the warranty period shall not begin until the briefing has concluded.
The purchaser's warranty claims lapse in cases where a product has been used by the purchaser or its customers other than for its intended purpose (e.g. through disregard for the intended operation as per the operations manual, by use of the product by persons not qualified to do so or by a change in the product or of parts of the product).
Consumables and wear parts are excluded from the warranty.
The vendor's general liability is defined as follows:
Claims for compensation for damages are excluded regardless of the type of breach of contract, unlawful actions or reimbursement of wasted expenditures, unless caused deliberately or as a result of gross negligence.
Notwithstanding this, in cases of breach of essential contractual obligations the vendor is liable for all negligence, but only to the amount of the foreseeable and typically occurring damages. Claims cannot be made for lost profits, for third-party claims for damages or for other indirect or consequential losses.
Where the vendor's liability is excluded or limited, this also applies for its employees, workers, representatives and vicarious agents.
The limitation and exclusion of liability in the above paragraphs shall not apply in cases of mandatory legal liability (in particular under product liability legislation), fraudulent conduct on the part of the vendor, acceptance of a guarantee by the vendor or damages arising from death, or injury to body or health.
7. Payment, Credit Unworthiness
The vendor's demands for payment are to be paid "net cash" by bank transfer to the bank account given in the invoice within 14 days of the date of the invoice, subject to any other agreement.
The vendor accepts bills of exchange or checks only on the basis of a corresponding written agreement and only ever on account of payment. Discount and bill of exchange charges are to be borne by the purchaser and are payable immediately
If the purchaser defaults on a payment then the statutory provisions apply with the following proviso:
The purchaser defaults automatically with a vendor's claim for payment at the latest 10 days after the due date for payment and receipt of the goods without a reminder or further demand for payment being necessary.
If the vendor becomes aware of circumstances that place the creditworthiness of the purchaser in question, the purchaser issues a check without having sufficient funds to cover it or stops its payments or the vendor's credit insurer reduces or cancels the credit amount for the purchaser, or if the vendor becomes aware of other circumstances that put the purchaser's creditworthiness in question, then the vendor is entitled demand payment for the total of all the outstanding debts on all open contracts, even if it has accepted checks. In this case the vendor is also entitled to demand payment in advance or collateral security. In cases of sentence 1 the vendor may make the fulfilment of delivery obligations in relation to future contracts between the vendor and the purchaser dependent on receipt of an appropriate advance payment for the respective delivery. As well as this the vendor has the right to refuse performance under S. 321 of the German Civil Code.
With respect to the vendor's demands the practise of commercial right of retention is excluded. Offsetting and retention by the purchaser is only permitted with or because of demands that are undisputed and are established as legally effective.
8. Retention of Title
The vendor retains the ownership of the sale item until all demands (including all current account balance claims from the current account) against the purchaser for whatever legal reasons are fulfilled (goods subject to retention of title).Where the purchaser acts in breach of the contract, in particular in the case of default on payment, the vendor is entitled to take back the goods subject to retention of title. The withdrawal of the sale items has the meaning of a cancellation of the contract.
The purchaser is obliged to treat the goods subject to retention of title with care. It is obliged to insure the goods subject to retention of title against fire and water damage and theft sufficiently to its face value at its own cost.
In the case of seizures or other third party interventions the purchaser shall point out the property of the vendor; furthermore the purchaser must inform the vendor immediately, so that the vendor can institute proceedings in accordance with S. 771 of the Code of Civil Procedure (Zivilprozessordnung or ZPO). Where the third party is not in a position to reimburse the judicial and extrajudicial costs of proceedings in accordance with S. 771 of the Code of Civil Procedure the purchaser is liable for the losses arising from this.
The purchaser, which has its registered seat and his head office in Germany, is entitled to sell the goods subject to retention of title in the normal course of business, as long as it is not in arrears on payment. Pledging or chattel mortgaging are not permitted. By way of security the purchaser herewith assigns the full extent of the demands (including all current account balance claims from the current account) arising from such a resale or any other legal reason (in particular insurance, inadmissible conduct) in relation to the goods to the vendor. The vendor hereby accepts this. The vendor revocably authorizes the purchaser to collect the demands assigned to the vendor on behalf of the latter in its own name. This collection authorization can only be revoked if the purchaser does not fulfil its payment obligations in a proper manner.
The vendor is obliged to release the securities it is entitled to upon demand by the purchaser to the extent that the recoverable amount of the securities exceeds the demands to be secured by more than 10%; the choice regarding which securities to release is left to the vendor.
9. Concluding Provisions
Exclusive area of jurisdiction for all disputes arising from this contract is Norderstedt. However the vendor is also entitled to institute proceedings against the purchaser at the court with jurisdiction for the seat of the purchaser. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this rule.
The law of the Federal Republic of Germany shall apply. The United Nations Convention on the International Sale of Goods (CISG) is excluded.
Should individual provisions of these Conditions of Sale and Supply prove invalid this shall not affect validity of the other provisions.