Terms of sale and delivery
Issued 04/2012
Our Terms of Sale and Delivery form part of all offers and contracts as well as of all future business relationships, even if they are not expressly agreed upon again. Any conditions of the customer which are contrary to the present are hereby expressly contradicted; they are only binding on us if expressly confirmed by us in writing.
I. Conclusion of Contract, Documents, Property Rights
1. The order is only deemed to be accepted if it has been confirmed by us in writing. Until such time, our offer is subject to alteration.
2. Alterations or additions on the part of the customer compared to the original order and all supplementary agreements reached by the parties to the contract with regard to the order also require our written confirmation in order to be valid.
3. In order to satisfy the written form requirement it is sufficient to make available to the customer, in cited form without signature, all additions, alterations or supplementary agreements reached.
4. We reserve ownership and copyrights to quotations, drafts, drawings, and other documents; without our consent they must not be made available to third parties. Drawings and other documents provided as part of or in connection with an offer must be returned to us on request at any time in case the order is not placed with us. In case of our delivery of items according to drawings, models, samples or other documents provided by the customer, the latter shall ensure that industrial property rights of third parties are not infringed upon. If a third party, referring to proprietary rights, prohibits in particular the manufacturing and delivery of such items we shall be entitled to suspend all relevant activities and to claim damages without being obliged to examine legal responsibilities. In addition, the customer shall undertake to indemnify us immediately from third-party claims related to documents made available to us.
5. We reserve the right to charge the costs for samples and testing parts as well as tools required for their manufacturing. Unless otherwise agreed upon in writing, we will charge the manufacturing costs for the tools required for series production. All tools shall remain our property unless otherwise agreed upon in writing and even if their manufacturing costs have been assumed, in part or in full, by the customer.
II . Description of Services
1. The nature and quality of the delivery item or service provided shall be finally described by explicitly agreed features (e.g. specifications, labels, approvals, other information). Warranty for a special purpose or particular suitability shall be given only in case of explicit written agreement; otherwise the risk of suitability and use shall be assumed by the customer. Features or other qualities of deliveries and services, other than the ones expressly stipulated, shall not be warranted. Our deliveries may be subject to customary or minor deviations of physical and chemical quantities, including colors, recipes, methods and the use of raw materials as well as quantities ordered, that are technically unavoidable and acceptable to the customer.
2. Information regarding the delivery item or service provided (e.g. in catalogues, in product information sheets, electronic media or labeling) is based on our general experience and knowledge and merely constitutes guide values or markings. Neither this product information, or any expressly agreed features nor expressly agreed performance features and purposes of use release the Customer from testing the fitness for the intended purpose of use.
3. Information on the properties and possible applications of our products do not contain any warranties, including but not limited to those according to §§ 443, 444, 639 BGB (German Civil Code), unless explicitly stated in writing to be such.
III. Delivery
Goods are shipped at the expense and risk of the customer. The customer also bears the risk when delivery on a carriage paid basis is agreed. The customer is obliged to arrange for insurance of the goods during transport at his own expense. In the case of free delivery, the freight payment is to be regarded as an expense incurred on behalf of the customer.
IV. Packaging
Packaging is invoiced at cost. Unless otherwise agreed in writing, boxes returned in perfect condition and on a carriage paid basis are credited at two thirds of the invoiced value.
V. Delivery Time
1. Delivery times - even though a certain delivery date has been agreed with the customer - are only approximate and non-binding, unless the delivery date has been expressly fixed in writing. A confirmed date of delivery is subject to the correct, complete and timely delivery to the seller. The supply period shall be deemed to have been met, if the goods have left our premises or our notification of readiness for shipment has been given to the customer within this period. Delivery deadlines shall remain ineffective as long as the customer has not properly fulfilled his obligations, such as furnishing technical data and documents, approvals as well as making a down payment or providing a payment guarantee.
2. We are entitled to partial deliveries.
3. Acts of God or other events beyond our control that render the timely execution of accepted orders impossible shall relieve us of our delivery commitment as long as these events prevail.
4. It is generally not possible to return sold and non-defective goods.
5. In case customer becomes insolvent or subject to bankruptcy proceedings, reorganization proceedings, or comparable proceedings,customer's statements in lieu of an oath according to Sec. 807 German Code of Civil Procedure (ZPO), shortages of liquid funds or a significant deterioration of financial circumstances we shall be entitled to suspend deliveries immediately and to refuse the fulfillment of current contracts unless the customer executes counter-performance or, on our request, provides appropriate securities.
VI. Claims for Defects
1. We shall be liable for defects of goods delivered by us only according to the following stipulations:
2. The customer shall properly fulfill his duties regarding inspection and lodging complaints according to Sec. 377 German Commercial Code(HGB).
3. In case of a defect, the customer is entitled to claim supplementary performance (at our discretion either by means of rework or replacement).
4. In case of substitute delivery the customer is obliged to return the defective material on request.
5. Claims for rescission of contract or reduction of purchase price shall be granted only if the defect cannot be remedied within anappropriate period, if subsequent performance will incur unreasonable expenses, is unacceptable or must be considered asfailed for other reasons. The customer shall, however, have no right to rescind the contract in case of minor defects.
6. The customer shall allow us to promptly inspect any rejected goods, in particular these shall be made available to us on requestand at our cost. If complaints are unfounded, we shall reserve the right to charge transport costs and inspection expenses to the customer.
7. No claims for defects may be lodged if the defect can be put down to a violation of operating, maintenance and installation instructions, improper use or storage, faulty or negligent handling or assembly, natural wear and tear or tampering with the deliveryitem by the customer or a third party.
8. For goods other than new goods, delivered as mutually agreed upon, the customer may not make the aforementioned claims.
VII. Liability
1. We shall be liable for any damages, in particular resulting from culpa in contrahendo, breach of duty and unlawful acts (Sec. 823ff. German Civil Code), only insofar as we, our employees or assistants are charged with intent or gross negligence.
2. For damages resulting from injury to life, body or health, guarantees or violation of material contractual duties, we shall also be liablefor ordinary negligence. In case of a violation of material contractual duties our liability shall be limited to the direct average damage, predictable and typical according to the type of goods. Aforementioned stipulation shall also apply to breach of duty by our employees, vicarious agents.
3. According to the stipulations above, we shall be liable for the infringement of third parties' industrial property rights in connection with the sale of our goods only if such third parties' industrial property rights are valid in the Federal Republic of Germany and have been published at the time of delivery and only to the extent that such third parties' proprietary rights are infringed upon when using the goods as agreed. Thisshall not apply if we have manufactured the delivery items according to drawings, models, descriptions or other documents or dataprovided by the customer and if we, thus, do not or need not have knowledge of any infringement of industrial property rights in connection with goods developed by us. In this case our customer undertakes to warrant that there has not been and will be no infringementof third parties' industrial property rights, to inform us without delay of any potential and alleged cases of infringement of thirdparties' industrial property rights which may become known to him, to indemnify us from third parties' claims and, to bear allcosts and expenses incurred.
4. Claims for price reduction and rights to rescind the contract shall be rejected insofar as the claim for subsequent performance has lapsed.
5. Our liability pursuant to the provisions of the Product Liability Act and Sec. 478, 479 German Civil Code (last seller recourse) shallremain unaffected by the aforementioned stipulations.
6. Otherwise we shall be exempt from liability.
VIII Supplies and resale to the USA, liability exemptions
The resale, in particular direct resale and resale through third parties, in particular subsidiaries, of our products in the USA, US territories and Canada is not permitted. Should our products be supplied to the USA, US territories or Canada despite this prohibition and should we be subject to a warranty and/or product liability claim or a claim in respect of other liability considerations, the customer shall indemnify us against all claims arising from this, including any costs of legal action.
IX. Securities
1. We shall reserve the ownership of all and any goods delivered until all existing claims, including conditional and subsidiary claims, maintained by us towards the customer from our business relation have been satisfied; all deliveries shall be considered as one inclusive delivery transaction. The reserved ownership shall be security for our current account claims. All aforementioned stipulations shall also apply to future claims.
2. The customer shall be entitled to resell or process the purchased item or mix it with other goods in the scope of his ordinary business; however, he will, thus, now assign to us all claims resulting from resale, processing, mixing, or other causes in law related to the purchased item (in particular from insurance contracts or unlawful acts) in the amount of the mutually agreed final invoice total (incl. VAT). The same applies if an item is not sold but subject to a contract for work and materials or a contract for work and services.
3. Reservation of ownership shall also apply to such new goods resulting from the processing, mixing or combining of our goods with other goods in their full amount. These processes shall be performed on our part so that we shall be deemed to be the manufacturer. If third-party ownership rights do not extinguish after processing, mixing or combining with goods from third parties, we shall acquire joint ownership at a ratio of the objective value of those goods. If our ownership ceases as a result of combining or mixing, the customer shall transfer to us now his ownership and/or expectant rights of the new stock or item to the extent of the invoice value of goods delivered by us, and shall hold them in custody on our behalf at no charge.
4. The customer shall be authorized to collect debt claims from the resale despite the assignment as long as we have not revoked this authority.We will not collect debt claims ourselves, as long as the customer meets his payments with us in due course. Upon our first written requestthe customer shall be obliged to inform us about the debtors of assigned claims as well as to notify debtors of the assignment.
5. We shall have the right to revoke the customer's authority for resale according to point 2 and collection of assigned claims with immediate effect if the customer is in arrears with payments to us, experiences a shortage of liquid funds due to a significant deterioration of financial circumstances or does not carry out mutually agreed contractual obligations properly. In case customer becomes insolvent or subject to bankruptcy proceedings, reorganization proceedings, or comparable proceedings, discontinues payments, gives statements in lieu of an oathaccording to Sec. 807 German Code of Civil Procedure (ZPO), or if due to a shortage of liquid funds a change of ownership occurs in the customer's business, the authority for resale and collection of assigned claims will cease automatically.
6. The customer shall hold our (jointly) owned materials in custody on our behalf at no charge with due care and diligence as a prudent businessman and shall insure them against fire, burglary and other usual risks.
7. Any pledge or assignment as security by the customer of goods delivered under reservation of ownership is forbidden. Prior to any pledge or any other infringement of our ownership rights by third parties the customer shall notify us immediately and confirm the right of ownership in writing both to us and the third parties. Any residual costs arising from resulting legal action despite us winning a case shall be covered by the customer.
8. If the customer violates the contract, in particular by delays in payment, we shall be entitled to recover the goods; the customer hereby gives his advance consent to this recovery in such a case. The recovery shall be considered as a termination of contract only if explicitly stated by us. All costs incurred by the recovery (in particular transport costs) shall be charged to the customer. The customer may demand the delivery ofgoods recovered without an express notice of withdrawal only once the purchase price and all costs have been fully paid.
9. Securities which we are entitled to shall not be accounted for insofar as the value of our securities exceeds the nominal amount of claims to be secured by 20%.
X. Terms of Payment
1. Unless otherwise agreed, the invoice amounts are payable within 10 days with 2 % cash discount or after 30 days net.
2. Should, for time reasons, payment conditions become necessary which are different to those stated in our offers and order confirmations, these come into effect without the need for prior notice.
3. The customer may set off or withhold payments owed to us only if his counterclaim is undisputed or res judicata.
4. In case of delay of the customer's payment, we may additionally choose to call outstanding purchase price installments or other existing claims against the customer due as well as make future deliveries under this or other contracts dependent on an advance security or a contemporaneous payment against delivery.
5. If we accept bills of exchange, discount and bank charges are to be borne by the buyer.
6. We accept no responsibility for punctual presentation and protests. Bill of exchange payments do not constitute cash payments.
XI. Place of Performance and Jurisdiction, Other Provisions
1. The customer may assign his claims from the contractual relationship only with our prior written consent.
2. For all claims from business relations, in particular our deliveries, the place from which performance/delivery is made shall be the place ofperformance.
3. For all claims from business relations, in particular our deliveries, the exclusive place of jurisdiction shall be Wangen im Allgäu, Federal Republic of Germany. This shall also apply to disputes as to the creation and validity of a contractual relationship. We shall, however, have the option to proceed against the customer in appropriate courts at the customer's place of business. If a customer's place of business is located out of Germany, we shall be entitled to have all disputes, claims or differences arising out of or in connection with business relations finally settled under the rules of Arbitration of the Zurich Chamber of Commerce by one to three arbitrators appointed in accordance with the said rules. The place of arbitration shall be Zurich, Switzerland. The arbitration proceedings shall be conducted in the German language. The award rendered by the arbitrators shall be final and binding upon the parties concerned. 4. Our business relations shall be exclusively governed by the laws of the Federal Republic of Germany to the exclusion of its private international law as far as it refers to the applicability of another legal system. The UN-Convention on the International Sale of Goods (CISG.) and other international conventions on uniform law on the sale of goods are excluded.
XII . Binding Nature of the Contract
In the event of legal ineffectiveness or changes of individual points of the provisions, the remainder of the contract remains binding. The parties to the contract will immediately replace an ineffective provision with a new one that best reflects the economic purpose of the ineffective provision. The contract is exclusively based on the applicable law of the Federal Republic of Germany.
XIII . The Customer Agrees
to our storing of company related and personal data within the course of the business transactions.
(The currently valid Terms of Sale and Delivery can be viewed on our website and printed out at any time).
Hymer-Leichtmetallbau GmbH & Co. KG, Käferhofen 10, D-88239 Wangen im Allgäu/Germany.
