General terms of payment and delivery

§ 1 Validity of the terms  
(1) (1) All deliveries, services and offers provided by the Seller (the Contractor) are carried out exclusively on the basis of these terms of business. These terms are considered to have been accepted at latest when the products and/ or services have been accepted. Counter confirmations made by the Buyer (the Customer) with reference to his own business and/ or purchase terms are rejected by these present. As for the rest the business terms laid down hereinafter are valid – no matter whether the contractual offer was submitted by the Customer or by the Seller. Obvious errors, mistakes in the calculation, typographical mistakes and typing errors do not bind the Seller.
(2) Deviations from these business terms become legally effective only on the condition that they are confirmed in writing by the Seller.
§ 2 Commercial offers and conclusion of contracts  
(1) Unless explicitly otherwise stipulated the commercial offers submitted by the Seller are not binding and without obligation. The seller has to confirm in writing or by telephone acceptance declarations and all the orders. The same applies to supplements, modifications and supplementary agreements.
(2) Drawings, designs, measurements and weights and all other performance data are binding only on the condition that this was explicitly agreed upon. The transfer of ownership of documents referring to performance data is excluded. These shall not be disclosed to third parties and have to be returned upon request.
(3) The points of sale of the Seller are neither allowed to enter into oral supplementary agreements nor to give verbal promisses beyond the subject matter of the written contract.
§ 3 Prices  
(1) Unless otherwise agreed the Seller binds himself not to change the prices laid down in his commercial offers for the next 30 days counting from the date of the offers. The prices mentioned in the order confirmation by the Seller are decisive – to these in each case the current amount of the statutory Value-Added Tax (VAT) has to be added. Additional deliveries and performances are charged separately.
(2) The prices are – unless otherwise agreed – calculated ex works Kiel exclusive normal packing.
(3) If in the agreements concerning payment conditions the Buyer is granted the right to deduct discount from the amount to be paid the Seller – notwithstanding corresponding agreements reached – is entitled to refuse the discount if the Buyer is in debtor´s delay with other receivables.
§ 4 Remunerations for deliveries and services  
(1) Delivery dates and/ or deadlines – no matter whether stipulated with or without binding force – need to be laid down in written form. In case of doubt the delivery period starts with the reception of the complete set of order documents and when stipulated payment on account was effected.
(2) For delays of deliveries and performances which are caused by Acts of God and by occurrences which render a delivery significantly more difficult or even impossible for the Seller – as especially for example is the case when it comes to strikes, lockouts, administrative decrees, etc. even if the Seller´s suppliers are affected by these – the Seller shall not be held responsible even if agreements concerning binding terms and deadlines were reached. In these cases the Seller is entitled to postpone the delivery or the performance respectively by that period of time which corresponds to the impairments adding to this an appropriate starting period or alternatively to step back in parts or in total from the contract because of the still not fulfilled contractual obligation.
(3) If the impairment lasts more than three months the Buyer is entitled to step back from that part of the contract which has not yet been executed if he has granted an additional period of time to fulfill the contractual obligations. If the delivery time extents still more or if the Seller is released from his obligetions the Buyer shall not be entitled to assert claims for damages on this basis. The occurrences mentioned hereinbefore can be invoked by the Seller only on the condition that he notified the Buyer about them without delay. Should the case arise that the Seller is released from the obligation to perform the service he will make with immediate effect counterperformance to the Buyer.
(4) Should the case arise that the Seller is to be held responsible for non-compliance with periods and fixed dates he had accepted with binding force the Buyer is entitled to compensation payments amounting to ½ % for each completed week of delay – however to no more than to the amount which corresponds to 5 % of the invoice value of the deliveries and services affected by the delay. Claims which exceed these amounts are excluded – excepted that the delay was caused by at least gross negligence on the part of the Seller.
(5) At any time the Seller is entitled to carry out reasonable part-deliveries and part-services.
§ 5 The passing of the risk  
  The risk passes over to the Buyer when the Seller passes the consignment over to the person or institution to whom/ to which the shipment is entrusted. If shipment is impossible without the Seller´s fault the risk passes over to the Buyer as soon as he is notified about the readiness for shipment.
§ 6 Warranties  
(1) The Seller warrants that the products are free from manufactoring deficiencies and defects in material; the warranty period for mechanical parts of the products amounts to 1 year, for electronic parts to 6 months. Claims for warranty submitted after these periods are excluded with the exception of those cases where gross negligence or intentional neglect of one´s duties or physical damages is involved.
(2) The warranty period starts when the risk passed over to the Buyer (see: § 5). If the Seller´s operational or the maintenance instructions are not complied with, if modifications of products are carried out or product parts are exchanged or expendable materials are used which do not correspond to the original specifications warranty is not applicable as long as the Buyer does not refute a substantiated statement according to which one of these circumstances has caused the deficiency.
(3) The Buyer has to notify the Seller´s service department immediately of defects – at latest, however, within the period of one week after reception of the delivery object. The Seller has to be notified immediately of such defects that could not be detected within this period of time even after careful examination.
(4) If the Seller is notified by the Buyer of the non-compliance of the products with warranty it is left to the discretion of the seller whether:

the defective part or – as the case may be – device sall be repaired and sent back afterwards to the Buyer,

the buyer holds the defective parts or device in readiness and a technician of the Seller´s service department is sent to the Buyer in order to carry out the repair works.

  If the Buyer requests that the warranty repair works be carried out on a place he determines the Seller can comply with this request and those parts which are under warranty will not be charged whereas the working hours and the travelling expenses will be charged according to the standard fees of the Seller.
(5) If after a reasonable period of time the remedy works are unsuccessful it is left to the discretion of the Buyer to ask for a price reduction or to cancel the contract.
(6) Warranty for wear and tear caused by time and use is excluded.
(7) Only the immediate Buyer is entitled submit warranty claims to the Seller – and these are not assignable.
(8) The stipulations laid down hereinbefore describe in conclusion the warranty concerning the products and exclude all other kind of warranty claims. This does not apply to compensation claims for warranted qualities which protect the Buyer against the risk of consequential damages because of deficiencies.
(9) All transport expenses in the case of warranty will be assumed by the Buyer.
§ 7 Reservation of ownership  
(1) Until the fulfillment of all claims (including all balances in favor from current account) to which the Seller is entitled on whatever legal consideration with respect to the Buyer the following securities are granted to the Seller which he will release upon request at his discretion provided that the value of these claims exceeds substantially the amount of 20 %.
(2) The products remain property of the Seller. Processing or refabrication always are carried out to the benefit of the Seller as manufacturer – however without binding obligation for him. It is already now agreed that if the (co-)ownership of the Seller expires by combination the (co-)ownership of the Buyer in the integrated object is passed over to the Seller in accordance with its portion in the value (amount of the invoice). The buyer keeps the (co-)ownership of the seller free of charge. Those products to which the Seller has a right of (co-) ownership are called hereinafter “reservational products”.
(3) The Buyer is entitled to process the reservational products in business transactions carried out in the prescribed form and to sell them as long as he is not in default. Pledging and transfer ownership by way of security are not admissible. For securety reasons the Buyer assigns already now to the Seller all those claims which exist in connection with the reservational products and which might result from resale or from another legal consideration (insurance, unauthorized actions) including all the claims from the balances of current account. Until revoked the Seller authorizes him to collect the claims assigned to the Seller in the Seller´s name and on the Seller´s account. This direct debit mandate can be revoked only on the condition that the Buyer does not fulfill his payment obligations in due form.
(4) In cases of seizure-, security- or other accesses of third parties to the reservational products which are outside the business transactions carried out by the Buyer according to the prescribed form the Buyer´s attention will be drawn to the property of the Seller and he will notify him immediately.
(5) Should the case arise that the Buyer behaves contrary to the contract – especially if he is in default with payments – the Seller is entitled to take back the reservational products or – as the case may be – to demand that the Buyer´s surrender claims towards third parties be assigned to him. Taking back the reservational products and their pledging does not mean that the contract is cancelled – unless the Law about Consumption Loans is applicable.
§ 9 Payments  
(1) Unless otherwise agreed settlements of the Seller´s invoices are due within the 30 days after presentation of the invoices without discount. The Seller is entitled to appropriate payments to the Buyer´s former debts even if the Buyer insists on other provisions and he will inform the Buyer about the kind of setoff carried out. If already costs and interests have accrued the Seller will be entitled to appropriate at first the payments to the costs, then to the interest amounts and at last to the principal claim.
(2) A payment is considered to have been effected if the Seller can dispose of the amount. In the case of cheques payment is considered to have been effected if the amount represented by the cheque was credited without reserve to the Seller´s bank account.
(3) If the Buyer is in default of payment the Seller is entitled to charge – starting with the point of time in question – interest amounting to that percentage which corresponds to the interest rate charged by commercial credit institutes for open current accounts adding to this the statutory Value-Added Tax. They have to be reduced if the Buyer substantiates declarations that the charge is smaller.
(4) If the circumstances are divulged that question the Buyer´s creditability – especially if the commissioned credit institute does not honour a cheque or if the Buyer stops effecting payments of if the Seller is informed about other circumstances which question the creditability of the Buyer the Seller shall be entitled to fix a due date for the entire residual debt – even if he had accepted cheques. In these cases the Seller is entitled, too, to ask for advance payments or for collateral securities.
(5) The Buyer is entitled to set-off, to retain or to reduce payment – even if customer´s complaint or counterclaims are asserted – if the counterclaims were established by legal force or if they are undisputed. The Buyer – however – is entitled to retain payments because of counterclaims resulting from the same contractual relationship.
§ 10 Design changes  
  The Seller reserves the right to carry out design changes at any time.
§ 11 Patents  
(1) The Seller will exempt the Buyer and his customers from claims resulting from infringements of proprietor´s rights, trade-marks and/ or patents – with the exception of the cases when the design of a delivery object comes from the Buyer. The Seller´s obligation of indemnification is restricted to the amount of the purchase price. Additional preconditions for the exemption are the readiness to pass the direction of litigations to the Seller and that alleged legal offences are attributable only to the construction design of the Seller´s delivery objects without combination or use with other products.
(2) It is left to the discretion of the Seller if he wants to release himself from the obligations assumed according to subparagraph 1 whether

he provides the necessary licenses concerning the allegedly violated patents or

whether he puts at the Buyer´s disposal a modified delivery object and/ or parts of it which in case they are exchanged against the violated delivery object remove the corresponding part of the reproach of violation.

§ 12 Confidentiality  
  Unless explicitly otherwise agreed the information submitted to the Seller in connection with orders are not considered to be of confidential nature.
§ 13 Restriction of liability  
  Claims for compensation which result from positive breach of contract, from default at the conclusion of a contract and from unauthorized actions are excluded with respect to the Seller, to his vicarious agents and to vicarious officers – excepted here are those cases where deliberate or gross negligent behavior is obvious; this applies also to compensation claims which result from non-fulfillment; this however applies only to the compensation of indirect or consequential damages if requested – with the exception of such liabilities which shall safeguard the Buyer against the risk of such damages. All liabilities concerning negligence are restricted to the damage which was foreseeable when the contract was concluded and which is typical for this category of contracts. The aforementioned restrictions of liability do not apply to claims resulting from breaches of cardinal obligations, to claims for physical injuries and liabilities as defined by the Law about Product Liability
§ 14 Repair works  
  Unless otherwise agreed between the parties to the contract in the special provisions concerning repair works the terms of payment and delivery apply mutatis mutandis to all repair works carried out in the Seller´s workshop (contractor) and to those which are carried out at the Buyer´s (customer) place of business.
§ 15 Applicable legislation, place of jurisdiction, voidness in part  
(1) These business terms and the entire legal relationship between the Seller and the Buyer are governed by the legislation of the Federal Republic of Germany.
(2) If the Buyer is general merchant according to the Commercial Code or juridical person under Public Law or if he is a separate estate under Public Law the place of jurisdiction for all possible juridical disputes which might arise from this contract will be the city of Kiel.
(3) Should the case arise that one of the stipulations laid down in these business terms or that a stipulation laid down in another contractual agreements is invalid or will become invalid the validity of the remaining stipulations or provisions shall not be affected by this fact.
(4) All supplements to the contracts and all stipulations which deviate from these delivery and payment terms need to be laid down in written in order to become valid. A release of the requirement as to writing, too, needs in order to become valid to be laid down in written.