Application

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Suzan Black
6 years ago
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1 1. Application 1. These terms and conditions of sale shall apply exclusively vis á vis enterprises, governmental entities and special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code) (hereinafter: the buyer ). We only accept differing or contrary terms, if we approve explicitly the validity of those terms in writing. Terms of the buyer that differ from our terms and conditions do not apply, even if we do not object explicitly. 2. These terms and conditions do also apply for further businesses with the buyer, as long as the business contains transactions of a similar kind. 2 Orders 1. Our offers are always non-binding. Orders and additional agreements can only been considered as accepted by us in case of a confirmation in writing. 2. Offers in our online shop are non-binding. With a click on the order -button the buyer provides an offer to conclude a purchase contract. The purchase contract is only being achieved with an acceptance by us (dispatch of an order confirmation or invoice); the acceptance by us can happen within two weeks time and by .

2 3 Prices, payment terms 1. The calculation of the prices is in Euro. Only the prices valid at the time of the delivery do apply. 2. As long as something to the contrary is not agreed upon, our prices are ex works exclusive of the respective statutory VAT. Orders with a value of more than EUR will be delivered free in Germany. 3. As long as other payment terms are not agreed upon, for customers from Germany the purchase price has to be paid within 14 days, beginning from the invoice date, with a cash discount of 2%, or within 30 days, beginning from the invoice date, without cash discount. For customers from countries other than Germany, the purchase price has to be paid either by prepayment or by payment via credit card, as long as other payment terms are not agreed upon. 4. In case of payments via direct debit (only available for customers from Germany), the amount will be collected, as long as something to the contrary is not agreed upon, at the date of the invoicing from the banking account provided by the buyer, minus a cash discount of 2%. The buyer will be charges for costs incurred because of negative booking operation for lack of sufficient funds or because of wrong bank account details. 5. Bills of exchange and cheques will only be accepted with reservation and will only be regarded as payment after encashment. In every case we reserve the decision whether and to what extent a bill of exchange and a cheque will be accepted. Cash discounts for new invoices cannot be granted if old and payable invoices for previous orders exist. Payments made by the buyer will be utilized to redeem old liabilities. If it becomes apparent after acceptance of an order by the buyer, that our payment claim is according to our discretion endangered, we reserve the right to either demand securing of the advance payment of the payment claim or withdraw from the contract. Our right of withdrawal is not tied to a specific deadline. We are entitled to demand interest in line with banking practice if the buyer fails honor the payment claim in time. In case of default we are entitled to accelerate the total claim, with regards to the reversal of any bills of exchange or cheques. 6. Default charges are 8% above the base interest rate. The right to claim higher damages caused by delay is reserved.

3 4 Delivery 1. The prospective delivery dates are stated by us to our best judgement, without taking on a warranty for complying with the stated delivery date. A violation of the delivery date does not release the buyer from the obligation of accepting the goods. Giving notice of default ist contractually excluded, just as claims for damages and the right to resign from the contract because of default in delivery. 2. Availability is reserved by us. In case of obstruction because of force majeure, actions by authorities, interruptions of operations, shortage of raw materials, riots and strikes, blockades of railroads, or the like, the delivery dates are extended appropriately. 3. Deliveries are ex works on account and at risk of the buyer, as with carriage-free delivery and in cases where the delivery does not take place at the place of fulfillment. We assume no liability for damages and losses during transport. If the buyer does not give special instruction for delivery, delivery happens to the best of our judgment, but without responsibility for the cheapest way of delivery. 4. We reserve the right to remain 10% above or below the order of the buyer in terms of quantity. The costs for goods delivered above ordered quantity within this tolerance is borne by the buyer. Goods delivered below ordered quantity within this tolerance do not give the right for additional delivery; the price will be reduced by us according to the lower quantity.

4 5 Warranty 1. The time period for warranty claims is one year, beginning with the delivery of the delivered goods at the buyer. This does not apply in case the law provides for a longer time period. 2. Immediately after delivery to the buyer or to a third party specified by the buyer, the delivered goods must be carefully examined. They are considered as having been approved if we do not receive a notice of defects in writing within 7 days after delivery or since that moment when the defect was visible for the buyer without particular examination, regarding obvious defects or other defects that are noticeable after immediate and careful examination. Depending on our decision, the goods have to be shipped back to us carriage-free. In case of a valid claim we pay the costs for the cheapest shipping method; this does not apply insofar as the costs increase because the contractual goods are located at a place other than the intended place. 3. In case of defects of the contractual goods we are entitled and obliged to choose within an appropriate time period to rework the goods or to replace them. In case of a failure, that is impossibility, unacceptability, refusal or inappropriate delay of the rework or the replacement, the buyer can withdraw from the contract or diminish the purchase price reasonably. A contract that comprises of several subjects of agreement can be terminated because of a defect of one of the subjects of agreement only in case the different subjects have been left to the buyer in an interrelated way and the defect will affect negatively the contractually assumed functionality as a whole. 4. In case a defect is our fault, the buyer can claim damages under the provisions of sec. 6 of these terms and conditions. 5. Warranty claims do not exist in cases of insignificant deviation from the conditions agreed upon, in cases of insignificant impairment of the usability, in cases of natural wear and tear and in cases of damages that occur after transfer of risk because of flawed treatment, excessive usage or because of special outside influences that are not assumed according to the contract. 6. In addition, the warranty does not exist if the buyer changes the article of sale without our approval or lets a third party change the article of sale und and as a consequence make the correction of faults impossible or unacceptably complicated. In each of these cases the buyer has to bear the additional costs that occur because of his modifications.

5 7. Claims of regress against us do only exist insofar as the buyer has not made an agreement with his customer about claims for defects that go beyond the mandatory lawful standards. Sec. 5 para. 5 of these terms and conditions above applies for the extent of claims of regress of the buyer against us. 6 Liability for damages because of fault 1. Our liability for damages, regardless of the cause, especially because of impossibility, event of default, flawed or wrong shipment, breach of contract, violation of contract negotiation duties and unlawful acts is limited according to this sec. 6 of our terms and conditions, as long as fault matters. 2. We are not liable a. in cases of ordinary negligence of our organs, legal representatives, employees or any other vicarious agents; b. in cases of acts of gross negligence of our non-executive staff or any other vicarious agents, as long as it is not about violation of essential contractual obligations. Essential contractual obligations are those of defect-free delivery, obligations of protection and care that shall enable the buyer the contractual utilization of the contractual goods and obligations that have the purpose to protect the life and the body of personnel of the buyer or of third parties or the property of the buyer of serious damages. 3. Insofar as we are liable according to para. 2 above, damages are limited to those liabilities that are foreseeable at the time of the conclusion of the contract as a possible consequence of the breach of contract or that had to be foreseeable under consideration of care and attention. Indirect damages and consequential damages that are consequences of defects of the contractual goods are only recoverable as long as such damages can be typically anticipated under consideration of the intended utilization of the contractual goods. 4. In cases of liability because of ordinary negligence our obligation to pay compensation for material and personal damages exists only insofar as the negligence concerns the violation of essential contractual obligations or cardinal duties. However, we are only liable insofar as the damages are typically in connection with the contract and foreseeable.

6 5. The abovementioned disclaimers and limitations of liability apply to the same extent in favor of our organs, legal representatives, employees and other vicarious agents. 6. The limitations of this sec. 6 does not apply in cases of our liability because of deliberate conduct, in cases of guaranteed quality features, in cases of life injuries and bodily injuries and health injuries or because of product liability law. 7 Return shipment 1. The buyer is not allowed to return goods delivered to him; we will therefore refuse return shipments. An exception will only be made in case of a return shipment arranged with us in writing. Apart from that, the provisions of sec. 5 of these terms and conditions apply. 8 Retention of title 1. We retain title to the delivered goods until receipt of all payments of the supply contract in full. This does also apply for all further orders of the buyer, even if we do not explicitly refer to this provision. We are entitled to take the goods back if the buyer acts contrary to the contract. 2. The buyer is obliged to handle the goods with care, as long as the title has not been passed to him. The buyer has to conduct the necessary operations at his own cost, if maintenance and inspection work must be performed. As long as the title has not been passed to him, he has to inform us in writing in case the goods are seized or subjected to any other interventions of third parties. As long as the third party is not able to refund us the costs for a judicial or extrajudicial lawsuit according to sec 771 of the German Civil Procedures Rules, the buyer is liable for the occurring loss. 3. Resale of the goods subject of retention of title is allowed to the buyer within regular business operations. The claim of the customer resulting of the resale of the goods subject of retention of title is already resigned to us by the buyer to the extent of the maximum amount of the invoice (including VAT). Such assignment does apply regardless of the resale with or without processing of the goods. In addition to our right, the buyer has the right to demand payment also after the assignment; our right of demanding pay-

7 ment from the customer is not affected by the same right of the buyer. However, we will not demand payment as long as the buyer complies with his liabilities to pay from the proceeds collected, is not in default and especially an application to open insolvency proceedings has been filed or suspension of payments do not exist. 4. If goods subject of retention of title are processed with goods that do not belong to us, we acquire joint ownership of the new item in proportion of the objective value of our goods to the other goods at the time of the processing. The same applies in cases of mixture of goods. In case the mixture takes place in such a manner that the goods of the buyer are the main goods, it is agreed upon that the buyer transfers to us the proportional joint ownership and stores the sole ownership or joint ownership for us that has emerged because of the mixture. 5. We promise to release the collateral due to us on request of the buyer insofar the value of the collateral exceeds the debt outstanding by more than 20%.

8 9 Additional provisions for special goods based on drawings, specifications, models, and so forth 1. As long as we deliver goods based on drawings, specifications, models, and so forth they are only obligatory for us insofar external contouring and technical execution are concerned. For dimensional stability the stipulated data in the respective DIN forms apply. 2. Essential for the quality and the execution are the pattern that we have provided for assessment before delivery, as long as this was the case. Unconditional approval of the patterns by the buyer does exclude eventual notices of defect, insofar the delivered goods are consistent with the patterns. We do not assume responsibility for the envisaged purpose. 3. We retain retention of title and/ or copyright of all our offers and cost estimates as well as of all our drawings, illustrations, calculations, brochures, catalogs, models and any other documents and tools. Third parties are not allowed to receive these materials without our explicit consent whether as such or content wise. The buyer is obliged to return received materials to us completely and to destroy copies which may have been produced, in case he does not need them in the proper course of business or in case of negotiations between the parties do not lead to the conclusion of a contract. 4. Forms and tools remain our property, even if the costs for them are part of the purchase price or if the costs are refunded in any other way by the buyer. 5. If we have to deliver goods produced according to drawings, specifications, models, and so forth of the buyer, the buyer is liable for any breach of property rights of third parties by us. 6. Color deviations und different levels of surface shine, that are based on the nature of the raw material, and tolerances of strength, format and cutting based induced by the material used, are reserved.

9 10 Place of execution, jurisdiction 1. Place of execution for all claims based on the contractual relationship is Würzburg. 2. Place of jurisdiction for all disputes arising from the business relationship between us and the buyer is our registered office (place of business). Mandatory legal provisions about exclusive places of jurisdiction remain unaffected. 3. The business relationship between us and the buyer shall be governed exclusively by the laws of Germany excluding the Convention on Contracts for the International Sale of Goods. 4. If any of the provisions of this contract are or become invalid, or of it contains a gap, the validity of this contract shall not thereby be affected. The parties are obliged to replace any invalid provision with a valid provision which comes closest to the commercial purpose of the invalid provision respectively which fills in the blank. Please note: The buyer acknowledges that we save data of the contractual relationship according to sec. 28 of the Federal Data Protection Act for the purpose of data handling. We reserve the right to forward the data to third parties (for example insurance companies) insofar it is necessary to fulfill our contractual obligations.

General Terms and Conditions of Sale ITW Welding GmbH, Altleiningen - for use in business transactions with other companies - 1 Scope of application

General Terms and Conditions of Sale ITW Welding GmbH, Altleiningen - for use in business transactions with other companies - 1 Scope of application These General Terms and Conditions of Sale shall apply