General Terms and Conditions of Purchase (GTCP)

§ 1 General

  1. We buy exclusively under the following terms and conditions. The terms and conditions of the seller only apply insofar as they agree with our terms and conditions or we expressly agree to their applicability in writing. Any conflicting confirmations by the seller with reference to its terms and conditions of business or sale are herewith rejected. Our Terms and Conditions of Purchase also apply if, with knowledge of terms and conditions of the seller which conflict or deviate from our Terms and Conditions of Purchase, we accept the delivery without reservation.
  2. These Terms and Conditions of Purchase also apply to future contracts with the seller, even if they are not expressly agreed on again.

§ 2 Delivery

  1. Where the seller is in default with regard to its goods and/or services performance, a claim against it arises at the statutory interest rate. A limitation as to amount is rejected on our part.
  2. Where a seller expects not to be able to meet an agreed delivery date he shall notify us immediately, stating the reasons for and expected duration of the delay. If we thereafter declare our agreement to a certain delay in writing the seller shall not be deemed in default in this regard. In this case, the originally-agreed delivery dates shall be replaced by newly-agreed dates, for which all legal consequences pursuant to these Terms and Conditions of Purchase shall apply in all other regards.

§ 3 Warranty, guarantee

  1. The seller shall have unlimited liability according to the statutory provisions for warranties in sales law. This includes claims for damages arising from breaches of duty and liability in tort and for claims for damages arising from failure to perform.
  2. The seller guarantees that the goods delivered by him comply, as regards their composition, quality, packaging, declaration and specifications, with the statutory provisions of the country in which the goods are delivered and sold as intended.
  3. The seller further guarantees that the goods are free from rights of third parties; especially that there are neither property rights of third parties nor domestic or international industrial trademark rights attached to the goods which may be violated by the delivery to us or a sale of the goods to end-users. In the case that third parties assert such rights to the goods the seller – without prejudice to further rights on our part – shall be obliged promptly to clarify the validity of the asserted claims in cooperation with us. The seller shall indemnify us and our customers against claims arising from breaches of copyrights, trademarks or patents. This indemnity obligation of the seller is not limited with regard to amount.
  4. The seller waives his right to the assumption of approval in clause 377(2) of the German Commercial Code (HGB), insofar as the defect to be notified is not evident. In the case of evident and obvious defects, assumed approval shall come into force two weeks from delivery. We have an unlimited right to reject surplus goods. All costs arising from a surplus delivery shall be borne by the seller.
  5. The seller waives the plea that defects remained unknown to us due to gross negligence (clause 442(1) German Civil Code (BGB).

§ 4 Legal consequences of breaches of contract

  1. In case of non-compliance with fixed dates, warranted attributes and guarantees caused by at least slight negligence, and in case of irremediable defects of title, we shall be entitled to withdraw from contract and claim damages in place of performance at 10% of the purchase price, unless the seller proves a lesser damage. Our right to seek compensation for greater damage remains unaffected. This also applies if only parts of the deliveries have material defects or defects of title.
  2. Outside of essential contractual obligations we are not – with the exception of injury to life, body or health – liable for slight negligence. We shall be liable for the gross negligence of vicarious agents only to the extent of typically foreseeable damage. Further claims for damages are excluded.

§ 5 Retention of title, non-assignment clause

  1. Any retention of title for the benefit of third parties against us is excluded. In other respects, clause 3.2. of these Terms and Conditions of Purchase applies.

§ 6 Payment

Apart from claims under tort law and claims that are subject to objections, we shall be entitled to offset each counterclaim against claims of the seller.

§ 7 Place of jurisdiction, choice of law

  1. Where the seller is a businessperson within the meaning of the German Commercial Code (Handelsgesetzbuch), Hellenthal shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
  2. Legal relations between the seller and us are exclusively subject to the laws of the Federal Republic of Germany, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 1980.

§ 8 Final Provisions

All provisions contained in the General Terms and Conditions of Purchase are to be seen as severable and separate from the other provisions should one or several provisions be invalid or unenforceable. Should one of the above provisions become invalid or not become an integral part of the contract, the validity of the remaining provisions shall be unaffected.

Schoeller Werk GmbH & Co. KG

As of 04/2006