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E. Oppermann, Einbeck, Mechanische Gurt- und Bandweberei GmbH 

General Terms of Sale and Delivery 

I. General 

1) The following general terms are valid for all orders. Buyer’s general terms of business only become part of the contract insofar as we have accepted their validity in writing.

2) All verbal statements of our agents or employees as well as all orders require our written confirmation. Our quotations are subject to being sold. Estimations are without obligation. Orders are only considered as accepted after our written confirmation or after executed delivery.

3) Any acceptance of orders requires the credit rating of the buyer. If this condition is not granted on completion of contract or if it is no longer granted afterwards we have the right to retreat from the contract or to demand immediate payment. A lack of credit rating can be supposed, e.g. if the buyer is in arrears (with payment) for a former delivery for more than 10 days.

4) The acceptance of our goods is in every respect considered as the acceptance of our terms of sales and deliveries.

 
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II. Delivery 

1) Any information about delivery times are related to the ex-works-departure of the goods and are always without obligation. Only in case of written confirmation delivery times are obligatory.

2) Despatch of the goods is executed ex works – if not concluded otherwise in writing -. Partial deliveries are permissible.

3) In case of delay of delivery due to the requirements of the buyer or without any other fault on our part, we are authorized to store the goods at the expenses and risk of the buyer in our estimation.

4) Special requirements of the buyer (e.g. delivery to an address deviating from the buyer’s address, speeded up despatch, special packing, instruction of a certain forwarding agent) are considered as far as possible. Any additional costs resulting from these special requirements based on real expenses, however, at least 3 % of net-price are payable by the buyer.

5) The risk is passed to the buyer as soon as the goods have left our place of dispatch – even as far as we pay the costs of transport -.

 
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III. Interruption of delivery, delay 

1) All obligations and times of delivery are suspended as long as the buyer does not carry out the action required for the completion of the order or as long as he is in arrears with the payment.

2) If the non-compliance with delivery times is due to force majeure, e.g. war or revolt or similar incidents, e.g. industrial actions / strikes, the periods of time are extended in an appropriate way. If the hindering circustances should last longer than four weeks, every party to the contract is authorized to withdraw completely or partly from the contract, without granting any claims of replacement to the buyer. This is also valid, if the named incidents start at a time when we are in delay.

3) If we get in delay the buyer can – as far as he substantiates his damage resulting from this delay – demand a compensation for every completed week of delay amounting to 5 %, however, totally max. 5 % of the price of the deliveries which could not be dispatched due to the delay.

4) Claims for damages of the buyer due to delay as well as claims for damages instead of performance surpassing the range mentioned unter item 3 are in all cases of delay excluded, even after the expiry of a deadline given to us. This does not apply if we are absolutely liable in cases of intention, gross negligence or due to violation of life, body or health. The buyer is only authorized to retreat from the contract within the framework of legal determinations as far as we are responsible for the delay.

5) The buyer is obliged to declare within a reasonable period if he wants to withdraw from the contract due to the delay.

 
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IV. Prices 

1) The prices are fixed in EUR ex works, including packing. Invoicing is based on price-lists effective at the time of incoming order.

2) Payments are considered as accomplished on the day when we have received the amount. They are always credited to the eldest due liability. A deduction of discount from new invoices is inadmissible as long as elder invoices are still not paid.

3) We explicitly reserve the right to refuse any cheques or drafts. If we accept cheques or drafts, the acceptance is made due to fulfilment with the usual proviso and without granting a discount. Draft interests and collection expenses have to be reimbursed at once by the buyer.

4) In case of default of payment we are authorized – subject to further rights – to invoice default interest of annual 8 % above the respective basic interest rate. If the buyer gets in default of payment for more than 10 days all open invoices become due for immediate payment.

5) In case of not cashing cheques or drafts, payment-suspension as well as in case of an introduction of a procedure for debt regulation all our demands become payable immediately – even in case of deferment of payment -.

The buyer is only authorized to balance with demands which are determined to be undisputed or legal.

6) Partial deliveries are always considered as completed business and are also subject to above payment terms.

 

 
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V. Reservation of Property 

1) The delivered goods (proviso goods) remain our property until fulfilment of all demands entitled to us resulting from this business. The delivered goods / proviso goods have to be stored separately from the buyer’s other goods, have to be marked on our demand and have to be insured against fire at the expenses of the buyer.

2) During the existing reservation of property the buyer is only authorized to resell the delivered goods / proviso goods in orderly business against cash payment or provided that the property only passes over to the customer, if the customer has paid to the buyer. Any mortgage or preventive transference is prohibited to the buyer.

3) By this the buyer cedes the demands resulting from the resale of the delivered goods / proviso goods amounting to the value of the proviso goods to us as prevention. He is obliged to inform us – on requirement - about the names of third-debtors and about the amount of these demands; we accept this cession. Until further notice the buyer is authorized to collect the ceded purchase-price-demands as long as he carries out his obligations with us. All costs resulting from the collection of the ceeded purchase-price-demands have to be born by the buyer. If the value of the prevention exceeds the amount of our demands by more than 20 % we are – on requirement of the buyer – obliged to reimburse accordingly.

4) If the buyer combines or processes the delivered goods with other objects we acquire for the prevention of our claims, indicated under item 1, a co-property which is transferred to us already now. The buyer will keep the goods subject to our co-property free of charge. The amount of our part of co-property is determined by the proportion of the value of our good or of the good resulting from processing or combination.

5) In case of access of third parties – in particular bailiffs – to the proviso goods the buyer will point out to our property and inform us immediately.

6) In case of opening insolvency procedure, payment stop, moratorium, default of payment or any other endangering of fulfilment we can take back he goods at the buyer’s expenses, without granting the buyer the right of withholding the goods, unless this right is based on the same single-contract relation from which results the right of handing over. We have the right to sell the taken back proviso goods by means of auction or over-the-counter and to balance the profit against the existing demands. Furthermore we are allowed to retreat from the contract completely or partly without any time setting but the buyer is liable for any expenses and a possibly occurring depreciation of the goods.

7) In case of breach of duty of the buyer, especially in case of default of payment we have the right to take back the proviso goods being our property. The buyer is obliged to hand over the goods. He has to pay the expenses for the taking back.

8) Consigned goods remain our full property. They only can be disposed at with our prior acceptance. A possible statutory period of limitation only starts according to our calculation. After sale payments become due immediately. Any valutation concluded at placing is then annulled.

 

 
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VI. Complaints and notices of defect 

1) The buyer is obliged to test the goods for material defects immediately.

2) Any complaints due to apparent material defects have to be announced immediately but latest within one week in writing, however, in any case before processing or treatment. Special periods according to the relevant valid General Transport Conditions have to be kept to. Despite possible defects the goods have to be accepted and stored in a proper way.

3) Any hidden material defects are to be announced in writing immediately after discovery and with exact indication of the announced single defects.

4) To meet the deadline the punctual sending is sufficient. In case of unpunctual information of complaints or notices of defect the delivery of the goods is considered to be accepted.

5) On requirement the buyer must enable us to examine the complaint goods.

6) The buyer has to proof completely all claims, especially the material defects, for the moment of the determination of the defect and the punctual reproach of the defect.

7) In case of existing legal faults the above rules are valid accordingly.

 

 
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VII. Warranty 

1) If the goods delivered by our company show any material defects we have the right to carry out the appropriate repair.

2) If the repair fails twice we have the right to deliver replacement. In this case the buyer is obliged to immediate return of the delivered defect goods.

3) If the delivered goods are proceeded by the buyer or combined with other goods (e.g. sewing up of the belts) this is at the risk of the buyer. In this case our warranty due to a defect of material is excluded.

4) All legal and contractual claims of the buyer due to a defect of the goods come under the statute of limitations after 12 months from date of delivery.

5) Any claims of the customer due to expenditures resulting from necessary repairs and replacements, especially expenses for transport, ways, labour and material are excluded as far as the expenses increase, because the goods are afterwards brought to another place than the house of the buyer unless the transport does correspond to the agreed use.

6) Any claims of retrieval of the buyer against us according to § 478 BGB (retrieval of the entrepreneur) only exist as far as the buyer did not reach a conclusion with his customer going beyond the legal defect claims. For the size of the claims of retrieval of the customer against us according to § 478 break 2 BGB also item 5 is valid adequately.

 
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VIII. Other claims 

1) If not determined otherwise in these terms of business or in compelling legal rules any claims for damages or expenses of the buyer – no matter which legal cause – against us, our legal representatives or assistants of fulfilment are excluded; this is not effective in case of wilful or grossly negligent breach of duty as well as damages of health and body caused by us.

2) The claim for damages due to breach of essential obligations of contract is restricted to the replacement of the predictable, typically occurring damage as far as intend or gross negligence do not exist or as far as we are liable for injury of life, body or health.

 
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XI. Final determinations 

1) Exclusively the law of the Federal Republic of Germany is effective for the relations between the parties to the contract. The determinations of the UN-agreement about the international purchase of goods (CISG) can not be applied.

2) Place of fulfilment and exclusive legal domicile for deliveries and payments and for all disputes between the parties to the contract is Einbeck – as far as the buyer is full businessman, juristic person of public right or special assets under public law.

3) If any individual determinations of the contract with buyer including these General Terms of Business are or become partly or completely inoperative, the validity of the remaining determinations of the contract is not concerned. The completely or partly inoperative regulation shall be replaced by a regulation, whose economic success comes close to that of the inoperative regulation.

 

(March 2002)


 
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