Terms and Conditions of Sale

§ 1 General, scope

Our Terms and Conditions of Sale have exclusive validity. Terms and conditions differing from our Terms and Conditions of Sale will not be accepted unless we have accepted them explicitly in writing. Our Terms and Conditions of Sale also apply if we proceed with delivery to the customer unconditionally while being aware of the fact that the customer's terms and condition contradict or deviate from our Terms and Conditions of Sale.
All agreements reached between the customer and ourselves for executing this contract are stipulated in writing in this contract. This also applies to the conclusion, amendment or termination of contracts.
Our Terms and Conditions of Sale only apply to companies covered by Section 310 (1) German Civil Code.
Our Terms and Conditions of Sale also apply to all future business transactions with the customer.

§ 2 Offer

Our offer is without obligation unless stated otherwise in the order confirmation.

§ 3 Terms of Payment

Unless stated otherwise in the order confirmation, our prices are to be understood ex works, not including packaging; this will be invoiced separately.
Statutory value added tax is not included in our prices. It is shown separately in the invoice.
Invoices are due for immediate payment. The agreement of any longer payment deadlines is subject to separate agreement.
The customer is only entitled to set off amounts from due payments if his counter-claims are legally established, undisputed or have been accepted by us. Furthermore, the customer is only entitled to exercise any withholding rights insofar as his counterclaim arises from the same contractual relationship.

§ 4 Customer's obligations

The fulfilment of our delivery obligation presumes that the customer's obligations have been fulfilled correctly and on time. We reserve the right to use the defence of non-fulfilment of the contract.
If the customer culpably violates his contractual obligations, we are entitled to claim compensation for any corresponding damage incurred by us, including any possible additional expenditure. We reserve the right to enforce further claims.
We are liable in the scope of the statutory provisions insofar as any delays to delivery have occurred as a result of wilful or grossly negligent breach of the contract on our part. Any liability on the part of our representatives or vicarious agents is to be attributed to us. Insofar as any delays to delivery have resulted from circumstances other than wilful breach of the contract on our part, our liability to pay compensation is limited to the foreseeable typical damage incurred in such cases.
We are liable in the scope of the statutory provisions insofar as any delays to delivery for which we are responsible refer to the culpable breach of a material contractual obligation. In this case, our liability to pay compensation is limited to the foreseeable typical damage incurred in such cases.

§ 5 Transfer of risk

Delivery is agreed ex works unless stated otherwise in the order confirmation.

§ 6 Liability for defects

The customer's rights in the event of any defects in the delivery presume that the customer has correctly fulfilled his corresponding duty of examination and notice pursuant to Section 377 German Commercial Code.
The customer is entitled to the statutory warranty rights insofar as these are not excluded or restricted below.
We are liable in the scope of the statutory provisions insofar as the customer claims compensation for damages resulting from wilful intent or gross negligence, including wilful intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of wilful breach of the contract, our liability to pay compensation is limited to the foreseeable typical damage incurred in such cases.
We are liable in the scope of the statutory provisions insofar as we have culpably breached a material contractual obligation. In this case, our liability to pay compensation is limited to the foreseeable typical damage incurred in such cases.
Insofar as the customer is entitled to claim compensation for the damage instead of performance, our liability is limited to the foreseeable typical damage incurred in such cases, also in the framework of paragraph 3.
Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability according to the Product Liability Act.

§ 7 Joint and several liability

Any further liability for damages going over and beyond the scope of Article 6 is ruled out, regardless of the legal nature of the corresponding claim. This applies in particular to claims for compensation resulting from culpa in contrahendo, other breaches of duty or tortuous claims for compensation for material damage pursuant to Section 823 German Civil Code.
The restriction according to paragraph 1 also applies insofar as the customer claims compensation for futile expenditure instead of claiming damages in lieu of performance.
Insofar as our liability for damages is excluded or restricted, this also applies to the personal liability for damages on the part of our employees, workers, staff, representatives and vicarious agents.

§ 8 Retention of title

We retain the title to the purchased item until we have received all payments from the existing current account relationship (business relationship) with the customer. This applies to the accepted balance. In the case of breach of contract by the customer, in particular default of payment, we are entitled to recover the purchased item. Recovery of the purchased item by us does not constitute any withdrawal from the contract. After recovering the purchased item, we are entitled to sell it and to impute the proceeds of the sale to the customer's debts after deducting an appropriate handling fee.
In the case of garnishment or other third-party intervention, our customer shall inform us immediately in writing so that we can take legal action pursuant to Section 771 Code of Civil Procedure. Insofar as the third party is not able to refund us with the costs incurred in court and out of court pursuant to Section 771 Code of Civil Procedure, the customer is liable to us for the costs we have incurred.
The customer is entitled to resell the purchased item in normal business transactions. However, he already assigns to us now at this moment in time all receivables amounting to the grand total of the invoice (including value added tax) of our receivable accruing to him from resale to his customer or third party, regardless of whether the purchased item has been sold without or after further processing. The customer remains entitled to collect this receivable even after it has been assigned to us. This does not affect our authority to collect the receivable ourselves. However, we undertake not to collect the receivable as long as the customer fulfils his payment obligations from the received proceeds, does not default in payment and, in particular, no application has been made to initiate settlement or insolvency proceedings or the customer has suspended payments. But if this should be the case, we can demand that the customer informs us of the assigned receivable and the particular debtor, provides all details necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the corresponding assignment.
The processing or alteration of the purchased item by the customer is always carried out on our behalf. If the purchased item is processed together with other items not belonging to us, we acquire co-ownership to the new item in the ratio of the value of the purchased item (grand total of the invoice including value added tax) to the other processed items at the point in time of processing. Otherwise, the item resulting from processing is subject to the same provisions as the conditionally supplied purchased item. If our property should expire as a result of connecting, blending or processing, the purchaser assigns us his resulting ownership or expectant rights to the new stock or item in the ratio of the invoice value of the item subject to retention of title to the invoice value of the other items used, and keeps it free of charge for us.
We undertake to release the securities accruing to us at the customer's request insofar as the realisable value of our securities exceeds the receivable thus being secured by more than 10%; the choice of which securities are released is made at our discretion.

§ 9 Final provisions

Insofar as the customer is a businessman, our registered office in Hellenthal is the place of jurisdiction. However, we are also entitled to take legal action against the customer at his general place of jurisdiction.
The laws of the Federal Republic of Germany are applicable only. Validity of the UN Convention on Contracts for the International Sale of Goods is ruled out.
Unless stated otherwise in the order confirmation, our registered office in Hellenthal is the place of performance.

Schoeller Werk GmbH & Co. KG

State: 04/2006