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Terms and Conditions

General Terms and Conditions of J.J. Darboven GmbH & Co. KG

1. Offer and contract conclusion

We supply exclusively at the following terms and conditions of sale. These also apply to all future commercial relations, even where they have not been expressly agreed again. Any diverging conditions or agreements shall only be valid if confirmed by us in writing.

Our offers are non-binding. The contract of sale offered to us shall come into existence only through the signing of this contract by us. The purchaser shall waive receipt of our declaration of acceptance. The purchaser’s terms and conditions of purchase shall not constitute part of the agreement unless they have been expressly accepted by us in writing.

2. Prices, transfer of risk

The prices applicable on the day of delivery according to our current price list, plus statutory VAT, shall be deemed agreed. Prices are non-binding unless the parties have concluded an agreement to the contrary in writing. The purchaser waives the demand that packaging materials are to be taken back by us.

3. Payments

Invoice amounts must be paid in full within 21 days of the invoice date. We grant a 2% discount where the purchaser has no outstanding debts with us and complete payment is received within 10 days of the invoice date. Any expenses associated with payment shall be at the expense of the purchaser. Where payment terms are exceeded or the purchaser fails to comply with payment instructions, all claims shall be due immediately. Any offsetting against counter-claims on the part of the purchaser and any right of retention is excluded, unless the purchaser’s claims are undisputed or finally established by court of law. This also applies to an assertion of defects.

Late payments shall be subject to payment of a statutory interest rate of 8% above the current base rate published by the Deutsche Bundesbank, unless the purchaser proves that the damage caused by the late payment is less than this amount. Payment default shall commence upon expiry of the agreed payment term, without need for special warning. We reserve the right to assert a claim to damages caused by default which exceeds the interest payment.

4. Supply

Delivery dates shall be complied with wherever possible. However, they are non-binding. Where binding delivery dates have been agreed in writing in individual cases the purchaser shall be entitled to withdraw from the transaction where the delivery date is not complied with. Any further claims in this regard shall be excluded. Circumstances which render the manufacture or delivery of the goods impossible or unduly difficult – including retrospectively occurring difficulties in procuring raw materials, and all cases of force majeure, business disruption, industrial action, traffic obstruction and similar – release us from the duty to deliver. We are entitled to supply part-deliveries, unless these fall below reasonable minimum amounts.

Where the purchaser incurs damage through a delay in supply for which we are responsible, the purchaser may only claim a maximum of compensation of 5% of the value of the affected part of the total delivery. Any further claims in the event of delivery default, in particular claims to damages, are excluded in accordance with the provisions in Section 7 (liability).

5. Retention of title, transfer by way of security, default of performance

5.1. The supplied goods (goods subject to retention of title) shall remain our property until full payment of the purchase price, including any ancillary claims, has been received. Furthermore, goods subject to retention of title remain our property until full payment of all claims from the commercial relationship with the purchaser which exist at the time of the relevant contract conclusion have been settled. The purchaser is entitled to sell the goods in the course of ordinary business proceedings. No other disposal, such as pledging or transfer by way of security, shall be permitted. Likewise, any sale of goods subject to retention of title following an effected suspension of payments shall be inadmissible. The claims resulting from a sale of our goods, including all ancillary rights, shall in advance be deemed to be assigned to us. This shall apply until all our claims have been settled in full. Provided the purchaser meets his payment obligations with regard to us, he may collect sums due for his own account in the course of ordinary business proceedings. Any assignment of claims shall be excluded. The purchaser’s right to collect sums due ceases upon payment default, unsuccessful pledging of goods subject to retention of title, or an application to open insolvency proceedings over the purchaser’s assets. Where our claims against the purchaser are collateralised to an extent of over 110%, we shall release security rights up to this extent at the request of the purchaser at our discretion.

5.2. In the event that the originally supplied goods are – for whatever reason – exchanged by us, the new goods shall take the place of the originally supplied purchase items with the proviso that the provisions of this agreement shall then apply to these new goods.

5.3. The purchaser undertakes to insure the received goods adequately, including against theft, vandalism and damage by water and fire. In the event that the item of purchase is damaged or destroyed, the purchaser herewith assigns to us his rights and claims against the damaging party and its insurers or against his own insurers for the purposes of securing our rights. We herewith accept the assignment. We undertake to assign the ceded claims back to the purchaser following settlement of the commercial relationships.

5.4. Our claims shall be due immediately in the event of a significant deterioration in the financial circumstances or payment default of the purchaser. Any existing goods subject to retention of title shall be returned to us upon request, without this being deemed withdrawal from the transaction. Furthermore, the purchaser undertakes to inform us immediately of any legal measures taken by or other attachment of third parties regarding the goods subject to our retention of title. The same shall apply where an application to open insolvency proceedings is filed over the purchaser’s assets, or such proceedings have been opened, or third parties are or are attempting to carry out execution proceedings over the purchase item/the purchaser’s assets. The purchaser expressly declares his consent to the above provision. We also have the right to withdraw from the agreement under these circumstances. Reclaiming the goods on our own behalf shall not establish a presumption of withdrawal from the agreement; reclaiming shall not be deemed withdrawal.

 

5.5. Following reclaiming of the goods by us and/or our withdrawal from the agreement, and after we have set a period of grace, and this period having expired without result, we shall be entitled to dispose freely of any reclaimed goods. Any utilisation proceeds shall be credited to the purchaser. The credited amounts shall be offset against our claims.

6. Warranty

6.1. The purchaser is under obligation to properly inspect the supplied goods immediately upon receipt at his own expense in accordance with Section 377 of the German Commercial Code (HGB) and inform us immediately in writing of any defects, any wrong deliveries, or any quantity shortfalls. A term of preclusion of five days from receipt of the delivery shall apply to the dispatch of the notification. Written notice of any hidden defects must be served immediately upon discovery. Notifications of defects which are asserted against field staff or haulage contractors shall not be deemed notification made in compliance with form and time requirements. In the event of a justified notification of defects we shall supply replacement free of charge, under exclusion of any further claims.

6.2. Our warranty shall extend only to the contractual product specification. Any marketing statements by third parties or by us do not form part of the product specification.

6.3. Warranty claims of the purchaser shall lapse one year from delivery of the purchase item, unless the warranty claims are based on intent or gross negligence on our part, or the subject of the warranty claims are death or personal injury for which we are responsible.

 

6.4. Any further claims, in particular claims to damages, shall be excluded in accordance with the provisions in Section 7 (liability). Liability for consequential damage due to defects shall in particular be excluded.

6.5. Recourse claims of the purchaser against us pursuant to Section 478 of the German Civil Code (BGB) shall only be valid if the purchaser has not concluded any agreements with his client that exceed the statutory warranties.

7. Liability

7.1. The seller’s liability for damage of any kind is excluded. This exclusion of liability does not apply to

- damage caused with intent or gross negligence on the part of the seller;

- cases of slight negligence in the case of damage based on death or personal injury, or damage based on a breach of essential contractual duties by the seller.

7.2. In the event of a negligent breach of essential contractual duties the seller’s liability – with the exception of death or personal injury claims – is limited to damage typical for the type of agreement and foreseeable to the seller upon conclusion of the agreement or commission of the breach.

7.3. The above exclusions and limitations of liability also apply to the seller’s statutory representatives or vicarious agents and to their personal liability. They do not apply to claims pursuant to the German Product Liability Act (Produkthaftungsgesetz) where liability is mandatory under this law.

8. Written form, invalid provisions

No oral collateral agreements have been concluded. Collateral agreements, changes and additions to this agreement must be in writing. A waiver of the requirement of written form requires a written statement by both parties.

Should one of the provisions be or become void or ineffective this shall not affect the validity of the remaining agreement. It its place, the statutory provisions shall apply. Under no circumstances shall the affected provision of these terms and conditions be replaced by the purchaser’s General Terms and Conditions.

9. Place of performance, place of jurisdiction, applicable law

The place of performance for payment and supply of goods is Hamburg.

Hamburg is agreed as additional place of jurisdiction with any purchasers who are traders. However, we shall also be entitled to commence legal proceedings at the purchaser’s registered seat.

German material law exclusively applies, under exclusion of international civil law, unified international law and, in particular, the UN law on the sale of goods (CISG).

Version: 1 September 2011