General terms and conditions

1. Application

The present terms and conditions apply under exclusion of our clients’ General Terms and Conditions and subject to any contrary agreements for all deliveries from our part. Additionally, the statutory provisions applicable for any individual case apply, and for cross-border deliveries the INCOTERMS of the International Chamber of Commerce of Paris in its latest version.

2. Quotes, Prices

Our quotes and proposals are subject to change. The prices in force on the date of delivery plus the applicable statutory value added tax apply.

3. Terms of payment

Our invoices are payable within the agreed terms. Any payment to our sales representatives may only be made upon submission of a collecting power in writing. We only accept drafts if explicitly agreed. In such case, any discount and bank charges shall be to the buyer’s account.

4. Delivery

Delivery will be in accordance with the standard specifications and/or the agreed specifications. We are entitled to partial deliveries. Agreed delivery dates refer to the goods’ date of dispatch. If the goods must be accepted within a specified period, this acceptance shall be spread evenly over the total period, unless explicitly agreed otherwise. Furthermore, we are entitled to excess or short deliveries of up to 10%, provided that this is reasonable for the buyer.

The dispatch type and route is chosen by us. We will endeavour to the best of our ability to take any buyer’s requests into consideration; any additional costs caused by this shall be to the buyer’s account.

5. Calculation, Default

For the calculation, the unit of quantity determined by us is relevant.

In the event of default or delayed payment, any suspension of insurance cover by our credit insurer, and in the event of any other reasonable doubts regarding the buyer’s liquidity or credit standing, we shall be entitled – without prejudice to our other rights – to require upfront payment for any deliveries not yet performed and to render any receivables under the business relationship as due immediately. Our obligation of delivery shall be suspended while the buyer is in default on any due payment. In the event of default, we reserve the right to charge interest rates of 4% above the market rate of the German Federal Bank (Deutsche Bundesbank) or the default interest customary in the buyer’s country, whichever may apply.

The buyer may only offset or claim a retention right against our receivables if the counterclaim is undisputed or legally established as final and absolute.

6. Force majeure

In the event of any unforeseen disruption of operation, unmet delivery deadline or delivery failure by our suppliers, any shortage of labour, energy or raw materials, strike, lockout, transport acquisition problem, traffic disruption, official decree and event of Act of God or force majeure, the affected party shall be released from its obligation to deliver or accept for the duration of the disruption and to the extent of its effect; if the delay is exceeding 1 (one) month, either party shall be entitled to rescind the contract with regard to the quantity affected by the default of delivery or acceptance, excluding any further claims.

7. Notification of defects, Warranty

The buyer shall verify whether the goods delivered are of the contractually agreed quality and fit for the intended purpose or use. In the event of any apparent defects, we must be notified in writing within 2 days after receipt of goods, in the event of non-apparent defects, immediately after discovery, however, no later than 6 months after receipt of goods, stating the order information and invoice and dispatch numbers. Any rejected goods may only be returned with our explicit approval.

Where explicitly limited qualities are sold, any warranty is excluded, unless the delivered goods do not meet the contractually agreed limited quality.

We will meet any duly lodged and justified notifications of defects by discounting the price, rectifying the defect, replacing the goods or taking them back against refund of the purchase price.

8. Trademarks

Any trademarks may only be used with special written approval of the trademark proprietor in connection with the products manufactured by the buyer.

9. Liability

In the event of any faultless or slightly negligent infringement of pre-contractual, contractual or statutory duties, we shall not be liable for any indemnity claims. This shall not apply for any faulty infringement of material contractual duties and for indemnity claims due to failure of a contractually guaranteed quality. To the extent that our liability hereunder is excluded, this also applies to the benefit of our employees. Our liability towards third parties under the Product Liability Act (Produkthaftungsgesetz) remains unaffected.

10. Reservation of property rights

We reserve the property rights to the goods delivered in order to secure all claims we are entitled to against the buyer under the present and future business relationship.

Our property rights shall extend to any new products created by processing of the reserved goods. The processing shall be deemed as done on our behalf as manufacturer. If the goods are processed, laced or mixed with materials that are not our property, we shall acquire joint property rights to the proportion of the invoice amount of our reserved goods in relation to the invoice amounts of the other materials.

The relevant buyer already now cedes to us all receivables from the sale of the reserved goods, including drafts and cheques by way of security for the applicable claims pursuant to paragraph 1 of this clause. For the sale of goods to which we have joint property rights, the cession shall be limited to the claim proportion corresponding to our joint property portion. For processing under a service contract, the service remuneration claim shall already now be ceded to us to the amount of the proportional sum of our invoice for the jointly processed reserved goods.

As long as the buyer is willing and able to duly fulfil his obligations towards us, he may in the course of ordinary business dispose over the goods that are our property or joint property and collect himself the receivables ceded to us.

The buyer may only perform transfers by way of security, pledging and assignment of receivables, even by factorisation, with our prior approval in writing. Any return of reserved goods back to us shall only constitute a rescission of the contract if explicitly declared so by us in writing.

Should the value of the securities exceed the receivables to be secured by more than 10%, we will to such extent upon the buyer’s request release securities of his choice.

Should the reservation of property rights not be allowed or only to limited extent by the laws in effect in the buyer’s country, then our above-stated rights shall be limited to the extent allowed by that law.

11. Place of performance

The place of performance for the delivery shall be our relevant delivery site, for payment it shall be Neunkirchen, Germany.

12. Jurisdiction and applicable law

Unless any compulsory legal provisions dictate otherwise, the place of jurisdiction shall be Neunkirchen, Germany for any legal action from our side also the buyer’s general place of jurisdiction. For international agreements of sale, the law in effect at our company’s domicile shall apply, under exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods from 11/04/1980.

Theobald GmbH