1.1 Our Terms and Conditions of Sale shall apply exclusively. No conditions imposed by the Purchaser will be recognized unless expressly approved by ourselves in writing. Our Terms and Conditions of Sale shall also apply if we effect delivery to the Purchaser unreservedly despite being aware of a conflict between his conditions and ours.
1.2 Our Terms and Conditions of Sale apply solely vis - à - vis business undertakings within the meaning of section § 310 of the German Civil Code.
1.3 The present Terms and Conditions also apply to all further business transactions with the Purchaser.
2. Quotation, Contractual Documents, Confidentiality, Rights of Use
2.1 No purchase order placed without prior quotation shall be deemed accepted until confirmed by ourselves in writing. Save as otherwise indicated in our Order Acknowledgment, quotations are non-binding.
2.2 Any illustrations, drawings, weights and dimensions referred to in our quotation shall viewed as approximate unless expressly designated or agreed upon as binding.
2.3 For service and maintenance work to be performed by ourselves the Purchaser must have made planning allowance for, and shall duly ensure, unobstructed access to the built-in product as far as is technically feasible. Our installation instructions shall be observed.
2.4 All written documents delivered or otherwise made available to the Purchaser by ourselves, whether before or after the execution of the contract, remain our exclusive property. In the absence of explicit agreements to the contrary , we reserve all copyright, patent or other industrial property rights, or corresponding rights of use thereto. No such document shall be used, duplicated, or disclosed to third parties without our prior consent except to the extent necessary for contractual performance. Documents belonging to, and designated as confidential by, the customer will not be made available nor disclosed to third parties by ourselves without his approval.
2.5 To the extent to which our scope of supply comprises software, the Purchaser is granted a non-exclusive right to use such software including the documentation pertaining thereto. Software is made available for use with the contractual goods for which it is intended; any use of such software on multiple systems is prohibited. Purchaser shall not reproduce, edit or translate such software, nor convert it back from object to source code, except as permitted by law (sections 69 et seq. of the German Copyrights Act). Purchaser undertakes not to remove nor in any way modify or alter any manufacturer's information or instructions - specifically, copyright notices - without the supplier's explicit prior consent. All other rights to such software and documentation, and to any existing copies thereof, remain with the software supplier. Sub-licensing is not permitted. Where the contractual goods are sold or otherwise disposed of, the Purchaser shall be entitled to transfer any software supplied therewith, including the relevant documentation, to the new owner.
3. Scope of supply
3.1 Our performance obligation shall be as set forth in our written Order Acknowledgment unless Purchaser has raised objections thereto forthwith. If a quotation is binding for a specified period only and subject to an acceptance time limit, the provisions of such quotation shall apply.
3.2 Any agreements made between ourselves and the customer with regard to contractual execution and performance shall be set forth in the contract in writing.
4. Prices and payment
4.1 Prices are valid ex works including loading at our site, but exclusive of pac kaging including value-added tax.
4.2 Packaging and shipping will be charged at cost. For undamaged packaging returned to us within three months from the loading date we shall refund half of its price as originally invoiced therefor.
4.3 Save as otherwise agreed upon, payments shall be made to a RENK Aktiengesellschaft bank account without any deduction and free and clear of any fees or charges. Cheques will not be deemed to constitute payment until cashed and duly honoured.
4.4 Value-added tax shall be payable in its full amount with the respective delivery instalment but no later than on the 10th day of the month following the invoice date..
4.5 We may request payments on account, including valueadded tax, in an amount corresponding to the value of any contractual performance we can demonstrate to have been rendered. The foregoing applies on the condition that evidence of such performance is furnished by ourselves in the form of auditable tabulations which can be quickly and easily verified. Such payments on account shall become payable within 10 days from the invoice date.
4.6 If the purchaser defaults on payments we shall be entitled to charge default interest at a rate of 8% above the Deutsche Bundesbank base rate as last announced. Over and above the foregoing, we shall be entitled to indemnification for any other loss or damage provably incurred.
4.7 ICustomer counterclaims shall not be offset unless effectively established by due process of law, or undisputed, or acknowledged by ourselves. The customer shall have no retention right except inasmuch as his valid counterclaim is derived from the same contractual relationship.
5. Delivery term, Delay in delivery
5.1 The delivery term shall be as agreed upon between the parties. On our part, compliance with delivery terms is contingent on the prior clarification of all commercial and technical issues between the parties and due fulfilment of all obligations incumbent on the Purchaser, e.g., delivery of any requisite government certificates or approvals, payment of a cash deposit, or the like. Non-fulfilment of such conditions shall give rise to a corresponding extension of the delivery term except where the delay is attributable to ourselves.
5.2 Compliance with delivery terms is covenanted subject to the condition of timely and proper receipt of supplies.
5.3 Save as otherwise agreed upon by way of exception, delivery shall be deemed to have been made in a timely manner if the contractual goods have left the manufacturer's plant, or their readiness for shipment has been communicated, prior to expiry of the delivery term. Where an acceptance procedure is required, the date thereof (or, alternatively, the date on which the goods are reported ready for such acceptance) shall be applicable, except where acceptance of the goods has been justifiably refused.
5.4 If a shipment or acceptance of contractual goods is delayed for reasons attributable to the Purchaser, any costs resulting from such delay shall be charged to the Purchaser commencing 14 days after the goods' readiness for shipment or acceptanc e had been communicated to him.
5.5 Where delay in delivery is attributable to Force Majeure, labour disputes or other events beyond our control, the delivery term shall be reasonably extended. We shall notify the purchaser of the onset and cessation of any such event forthwith.
5.6 Purchaser may terminate the contract without notice if it is or becomes impossible for the supplier to effect full performance prior to the passing of the risk. In addition, Purchaser may terminate the contract if part of his purchase order cannot be fulfilled and he has a justified interest in refusing partial fulfilment. If this latter condition is not met, Purchaser must pay the contractual price corresponding to the partial delivery. The same applies in the case of our inability to perform. In all other respects, the provisions of section X.2 shall apply. If an impossibility or inability occurs during a faulty delay in acceptance or if the relevant circum-stances are solely or predominantly attributable to Purchaser, the latter's counterperformance obligations shall remain in full force and effect.
5.7 Any faulty delay on our part causing loss or damage to Purchaser shall entitle the latter to liquidated damages. For each full week of delay the amount of such liquidated damages shall be 0.5% of the value of that portion of the overall supply which cannot be used in a timely or contractual manner due to such delay; however, it shall not in aggregate exceed 5% of the value of such portion. If, in the case of faulty delay on our part - with the exceptions provided by law - Purchaser grants us an appropriate time limit for performance and such time limit is not met, Purchaser shall be entitled to terminate the contract subject to statutory provisions.
5.8 Any further claims arising from default in delivery shall be governed exclusively by section X.2 of the present Terms and Conditions.
6. Passage of risk, Acceptance
6.1 Save as otherwise individually agreed upon, our deliveries are made exclusively on an "ex works" basis. As a result, the risk will pass to the Purchaser as soon as the goods are made available, even if shipment is made in parts or if we have agreed to extend our performance, e.g, by covering shipping charges, effecting delivery to a customer site, or supplying erection / installation services. In those exceptional cases where we have undertaken to effect shipment, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser at the time of their delivery to the forwarder, carrier, or other person or organization appointed to carry out such shipment. Where an acceptance procedure is required, the passage of the risk shall be determined by the outcome thereof. Any such acceptance shall be carried out on the acceptance date or, alter-natively, forthwith upon our notification of Purchaser that the goods are ready for acceptance. The presence of a non-essential defect shall not entitle Purchaser to refuse acceptance.
6.2 Where a shipment or acceptance is delayed or omitted for causes not attributable to us, the ris k shall pass to the Purchaser on the date of our notice that the goods are ready for shipment or for acceptance, respectively. Any insurance requested by Purchaser will be taken out by ourselves at Purchaser's cost.
6.3 Partial shipments shall be permitted to the extent to which they are reasonably acceptable to the purchaser.
7. Reservation of title
7.1 All goods and services supplied remain our exclusive property pending fulfillment of all claims from our relationship with the Purchaser that exist at the time of contract closure (including any claims arising from follow -up purchase orders, re-orders, or spare part orders). If deliveries are made on a current account basis, this reservation of title shall be deemed to constitute security for any outstanding balance. In the event of Purchaser's breach of contract, and specifically default on payments, we shall be entitled to repossess or otherwise recover the contractual goods. Such recovery or attachment of the goods shall not, however, constitute a termination of the contract on our part, except where specifically stated in writing. Recovered goods may be disposed of as we see fit. The proceeds of such disposal, less reasonable disposal costs, shall be deducted from Purchaser's liabilities toward ourselves. Any initiation of insolvency proceedings entitles us to terminate the contract and claim the immediate return of the contractual goods.
7.2 Purchaser shall treat the contractual goods with due care and caution and specifically undertakes to insure the goods adequately at their reinstatement value against fire, water, breakage, theft and other loss or damage. Any requisite maintenance and inspection work shall be performed by Purchaser in a timely manner at his own cost.
7.3 Purchaser shall neither pledge the contractual goods nor otherwise transfer ownership thereof by way of security before having made full payment. Any attachment or other third-party intervention shall be reported to us in writing forthwith. If the third party in question is unable to reimburse us for the costs of legal proceedings against him, whether in our out of court, Purchaser shall be liable for any resulting loss incurred by ourselves.
7.4 Purchaser shall be entitled to sell the contractual objects in his ordinary course of business, except when in default in payment. By signing the contract, Purchaser assigns to us by way of security all title or claims he may acquire as a result of such onward sale against his clients or third parties, regardless of whether or not the contractual goods have undergone further processing prior to such sale. Purchaser shall retain the right to collect on any such title or claims rights even after the transfer of ownership. We may collect on such title or claims ourselves but undertake to refrain from doing so as long as Purchaser does not default on payment due and owning and specifically, as long as no insolvency proceedings are initiated. However, if this case should arise, Purchaser shall to disclose to us, at our request, any title or claims assigned as well as the respective debtors, and undertakes to provide us with all requisite collection information and the associated documents and to inform the debtor(s) of the assignment.
7.5 Any processing or transformation of the contractual goods by Purchaser shall be deemed to be made for ourselves. If the contractual goods are processed together with other items which are not our property, we shall become coowners of any resulting new item in the ratio in which the contractual goods contribute to its value at the time of such processing. The items obtained as a result of such joint processing shall remain subject to the same reservation of title as set worth above with regard to goods supplied.
7.6 If the contractual goods are intermingled inseparably with other items which do not constitute our property, we shall become co-owners of any resulting new item in the ratio in which the contractual goods contribute to its value at the time of such intermingling. If the intermingling process is such that Purchaser's contribution thereto must be viewed as the main or predominant contribution, Purchaser shall transfer pro-rata ownership thereof to us. Purchaser shall be deemed the guardian of the resulting severally or jointly owned items.
7.7 We agree to release any security to which we are entitled, at Purchaser's request, to the extent to which the realizable value of the securities held exceeds the value of the claims secured by more than 15%. The securities to be thus released shall be selected by ourselves at our sole discretion.
8. Plea of uncertainty
If it emerges after the execution of the contract that our payment claim is at risk due to lack of solvency on the part of the Purchaser we may set an appropriate time period within which the Purchaser shall furnish security. If such time limit expires unsuccessfully we shall be entitled to terminate the contract, even if we do not incur any advance liabilities but must merely engage in preparatory negotiations to ensure timely completion of the contract. The stipulated delivery term shall in this case be extended by the time expired between our setting of the time limit and the time that such security is actually furnished.
For defects of quality or title we extend the following warranty, to the exclusion of all further claims, subject to the provisions of section X:
9.1 All parts found to be defective for reasons preceding the passage of the risk shall be reworked or exchanged, at our discretion, at no cost to the Purchaser. Any such defect shall be reported to us forthwith upon discovery. Replaced parts become our property.
9.2 Purchaser shall provide us, following due coordination with ourselves, with the requisite time and opportunity for carrying out all repair and replacement deliveries we may deem necessary; failure to comply with this requirement shall release us from any liability for the resulting consequences. Only in urgent cases, such as hazards to operating safety or to prevent disproportionately extensive loss or damage, shall Purchaser be entitled to remedy a defect himself or arrange for its removal by third parties and to claim indemnification for costs incurred from us.
9.3 Of the costs associated with rework or replacement deliveries made upon a complaint which turns out justified, we shall cover the price of the replacement part including shipping, proper installation costs and, where this can be reasonably expected in the specific situation, the cost of providing Purchaser's fitters and helpers.
9.4 Purchaser shall be entitled to terminate the contract, subject to applicable legal provisions and to the exceptions imposed by statute, if we fail to remove a defect of quality within Purchaser's set time limit. If the defect is of a nonessential type, Purchaser shall merely be entitled to a reduction in the contractual price. Any other rights to a reduction in the contractual price shall be excluded.
9.5 No warranty shall be accepted specifically in the case of improper use, misuse, faulty assembly or start-up carried out by Purchaser or third parties, natural wear and tear, improper treatment or neglect, inappropriate maintenance, use of unsuitable equipment, fuels or consumables, flawed civil engineering, unsuitable soil conditions, or adverse influences of a chemical, electrochemical or electrical nature, to the extent to which the foregoing are not attributable to ourselves.
9.6 Improper rework carried out by Purchaser or a third party releases us of any liability for the resulting consequences. The same applies if changes to the contractual products are made without our prior consent. Defects of title
9.7 If the use of the contractual products gives rise to an infringement of industrial property rights or copyrights in Germany, the supplier shall, as a rule, procure for Purchaser's benefit the right benefit from the continued use of such products, or else modify the contractual products in a manner reasonably acceptable to Purchaser so that such infringement no longer exists. If the foregoing cannot be achieved in an economically reasonable manner or within a reas onable time, Purchaser shall be entitled to terminate the contract. In this case we, too, shall have a termination right. In addition, we shall hold the Purchaser harmless for and against any undisputed or legally established claims asserted by the intellectual property owners concerned.
9.8 Our obligations in section IX.7, subject to section X.2, are exclusive in case of infringement of an industrial property right or copyright. Nevertheless the obligations only exist provided that · Purchaser notifies us forthwith of any claim asserted for industrial property right or copy-right infringement; · Purchaser supports us to a reasonable extent in defending any claims thus asserted, or gives us the opportunity to carry out modifications as contemplated in section IX.7 ; · all measures aimed at averting such claims, including out-of-court settlement, remain fully reserved to ourselves; · the defect of title does not derive from Purchaser's own instructions; · the infringement is not due to Purchaser's unauthorized modification or non-contractual use of the contractual goods. Constructive consent: Purchaser shall examine the contractual products forthwith upon delivery in the orderly conduct of business and advise us forthwith in writing of any defect discovered. Failure on Purchaser's part to meet this obligation shall be construed as approval of the delivery. Any defect identified at a later date shall likewise be communicated to us forthwith, otherwise the delivery shall be deemed approved to this extent as well.
10.1 The provisions of sections IX and X.2 shall apply mutatis mutandis, to the exclusion of any further claims of the Purchaser, if the contractual goods cannot be used by Purchaser for the contractual purpose through a fault of ours residing in the non-provision or defective nature of suggestions or advice, whether occurring before or after the conclusion of the contract, or in a breach of other ancillary contractual duties such as, specifically, faulty or lacking instructions for the use and maitenance of the contractual goods.
10.2 For loss or damage incurred outside the contractual products themselves, we shall not accept liability, regardless of legal grounds, except in the case of a) intent; b) gross negligence on the part of our owner/organs or senior executives; c) faulty caused health impairment, injury or death; d) malicious non-disclosure of defects, or occurrence of defects we had guaranteed to be absent; e) defects in the contractual goods for which the German Product Liability Act imposes liability for personal injury or for loss or damage to private property. In the case of faulty breach of essential contractual duties we shall also be liable in the case of gross negligence on the part of non-executive personnel and of mere ordinary negligence, provided that in the latter case, our liability shall be limited to loss or damage which lies typically in the nature of the contract and can be reasonably anticipated. Further claims are excluded.
11. Time limit
All claims of the Purchaser, regardless of the legal grounds therefore, become statute-barred after twelve (12) months. For claims for damages in section X.2a) - e), the statutory time limits shall apply. The statutory time limits shall also apply with regard to defects in a contrac tual product that is a structure or that has been used in a structure consistently with common practice and has caused its defectiveness.
12. Applicable law, jurisdiction
12.1 All legal relationships between Supplier and Purchaser shall be governed exclusively by the law of the Federal Republic of Germany as applicable to legal relations between domestic parties, to the exclusion of UN law of purchase.
12.2 FThe relevant courts at the place of Supplier's registered office shall have exclusive jurisdiction. However, nothing herein shall be construed as barring Supplier from filing suit at the venue of Purchaser's headquarters.