General Business Conditions and Terms and Conditions of Sale and  Delivery of the ARNTZ group

ARNTZ GmbH + Co. KG, D - 42855 Remscheid,  GERMANY
ARNTZ Sägetechnik GmbH, D - 04626 Schmölln/Thür.,  GERMANY

 

 

Cope of application
1. The present terms and conditions of sale only apply to enterprises, legal entities under public law and public law special funds.
Our deliveries and services shall exclusively be made on the basis of the following terms and conditions.
The Business Terms of the partner that are not expressly acknowledged by us shall not be valid.

General provisions
2. The contracting Parties shall confirm oral agreements in detail in writing without delay.
3. Orders shall only become binding with our order confirmation.
4. The information and illustrations contained in brochures and catalogues shall be approximations customary within the trade unless they have been expressly termed binding by us.

Long-term and call contracts, adaptation of price
5. If an essential change in the salary, material or energy costs occurs in long-term contracts (contracts with a term of more than 12 months and unlimited contracts), each contracting party shall be entitled to demand a suitable adaptation of the price, taking said factors into due account.
6. For delivery contracts on call, binding quantities shall be notified to us no later than 2 months before the delivery date if nothing to the contrary has been agreed.
Additional costs caused by a delayed call or subsequent changes of the call with a view to time or quantity by our partner shall be charged to the latter, in which context our calculation shall be decisive.

Confidentiality
7. Each contracting party shall solely use the any and all documentation (including samples, models and data) and any knowledge which it obtains from the business relationship for jointly pursued purposes and keep them secret from third parties with the same due care as with the partner’s own knowledge and documentation if the other contracting party has termed them as being confidential or has an obvious interest in their confidentiality.
This obligation shall commence with first receipt of the documents or knowledge and shall end 36 months after the end of the business relationship.
8. The obligation shall not apply to documentation and knowledge which are public domain, or were already known to the contracting party upon receipt without it being obligated to confidentiality, or were transmitted thereafter by a third party which was entitled to transmission, or developed by the receiving contracting party without utilization of documents or knowledge of the other contracting party to be kept secret.

Drawings and descriptions
9. If one contracting party provides the other party with drawings or technical documentation about the goods to be supplied or their manufacture, they shall remain property of the contracting party providing them.


Samples and production equipment
10. The production costs for samples and production equipment (tools, moulds, templates etc.) shall be charged separately from the goods to be supplied if nothing to the contrary has been agreed. This shall also apply to production equipment that has to be replaced as a result of wear and tear.
11. The costs of maintenance and proper storage as well as the risk of damage or destruction of the production equipment shall be borne by us.
12. If the partner ceases cooperation or ends it during the production period of the samples or production equipment, all the production costs incurred up to such time shall be charged to it.
13. The production equipment shall remain in our possession even if the partner has paid for it, at least until completion of the delivery contract. Thereafter, the partner shall be entitled to demand that the production equipment be handed over if mutual agreement has been reached on the time of the hand-over and the partner has complied with its contractual duties to a complete extent.
14. We shall keep the production equipment free of charge for three years after the last delivery to our partner. Thereafter, we shall request in writing that our partner states its intention on further use within a period of 6 weeks. Our obligation to retain the equipment shall end if nothing has been stated within this 6-week period or if no new order is placed.
15. Production equipment specifically made for a customer may only be used by us for deliveries to third parties with prior written approval of that partner.

Prices
16. Our prices are in Euros and are exclusive of value added (sales) tax, packaging, freight, postage and insurance.

 

Repairs
17.  The mode or type of repair will be assessed on the basis of a detailed, expert examination by the supplier. This examination will be decisive in determining costs, even without the written consent of the purchaser.

Payment terms
18. All invoices shall be due for net payment within 30 days of the invoice date. A discount of 2% is offered for payments made within 10 days.
19. If part of a delivery contains undisputedly defective goods, our partner is nevertheless obliged to make the payment for the faultless goods unless it has no interest in the that part of the delivery. In addition, the partner can only offset payment against legally effective or undisputed counterclaims.
20. If the payment period is exceeded, we shall be entitled to charge default interest at the rate which the bank charges us for current account loans, albeit no less than the amount of 8 percentage points above the basic rate of interest of the European Central Bank at the time in question.
21. In default in payment, we are entitled to cease performance of our obligations until we receive the payments, following written notification to the partner.
22. Bills and cheques shall be accepted only by agreement and on account of performance and under the precondition that they are bankable. Discount fees shall be charged from the day of maturity of the invoice amount. Guarantee for punctual presentation of the bill and charging and for making bill protests shall be ruled out.
23. If after the contract has been concluded it becomes clear that our claim to payment is jeopardized because the partner is insolvent, we can reject performance and grant the partner a suitable period of grace in which it must match payment with delivery or provide collateral. If the partner rejects this or if the period expires without payment being made, we shall be entitled to withdraw from the contract and to demand damages.

24. The supplier has the right to assign its claims against the buyer to any third party.

25. Should a buyer be in default of payment for just one receivable, all claims against the purchaser may be declared due.

26. The buyer has to bear all fees, costs and expenses arising outside Germany in connection with any successful, legal proceeding against him.

 

Delivery
27. Unless otherwise agreed, we shall supply "ex works, packing excluded". Compliance with the delivery date or the delivery period shall be determined by the notification of readiness for dispatch or collection provided by us.
28. The delivery period shall commence with the dispatch of our order confirmation and shall be extended adequately if the conditions of Section 54 have been fulfilled.
29. Partial deliveries shall be allowed to a reasonable extent. They shall be charged separately.
30. Within a tolerance of plus or minus 10 per cent of the total order quantity, production-related delivery deviations shall be admissible. The total price shall vary accordingly.

Dispatch and passage of risk
31. Upon notification, the partner shall collect any goods ready for dispatch without delay. Otherwise we shall be entitled to dispatch them or to store them at the partner's risk and expense, at our option.
32. If no specific agreement has been made we shall choose the means and the route of transportation.
33. With transfer of the goods to the rail freight company, haulier or freight forwarder, or when storage commences, whichever the case may be, albeit no later than dispatch from the factory or warehouse, risk shall pass to the partner, even if we are organizing delivery.

Arrears in delivery
34. If it becomes clear that the goods cannot be delivered within the delivery period we shall inform the partner in writing of this without delay and, where possible, state the estimated time of delivery.
35. If delivery is delayed by any circumstances set out in Section 54 or by an action or omission of the partner, an extension of the delivery period commensurate with the circumstances in question shall be granted.
36. The partner shall be entitled to withdraw from the contract only if we are answerable for failure to meet the delivery date and once a commensurate period of grace granted by the partner has passed without success.

Retention of title
37. We reserve ownership of the supplied goods until the fulfillment of all claims from the business relationship with the partner.
38. The partner shall be entitled to sell said goods in the ordinary course of business as long as it fulfils its obligations from the business relationship with us in good time. However, it may neither pledge the reserved goods not assign them by way of security. It shall be obliged to secure our rights in credited resale of the reserved goods.
39. If the partner breaches its duties, in particular in arrears in payment, we shall be entitled to withdraw and to demand return following the unsuccessful expiry of a period of grace set for the partner. The statutory provisions concerning the waiver of a period of grace shall remain unaffected. The partner shall be obliged to return the goods.
We shall be entitled to withdraw from the contract if an application for opening of insolvency proceedings against the partner's assets has been made.
40. All claims and rights from the sale or, if applicable, rental of goods permitted to the partner for goods for which ownership rights accrue to us are here and now assigned to us by the partner by way of security. We hereby accept the assignment.
41. All and any machining or processing of the reserved goods shall always be carried out by the partner on our behalf. If the reserved goods are processed or inseparably blended with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the invoice value of the reserved goods to the other processed or blended objects at the time of the processing or blending.
If our goods are processed or inseparably blended with other movable objects to form a single object and if the other object is to be regarded as the main object, the partner shall assign co-ownership to us pro rata to the extent that the main object belongs to it. The partner shall keep the ownership or co-ownership on our behalf. In all other matters the same shall apply to the object originating as a result of the processing or the blending as for the reserved goods.
42. The partner shall inform us without delay of compulsory enforcement measures of third parties against the reserved goods, the claims assigned to us or other collaterals, providing the documents necessary for an intervention. This shall also apply to impairments of any other kind.
43. If the value of the existing collateral exceeds the secured claims by a total of more than 20 per cent, we shall be obliged, upon request by the partner, to release collaterals to this extent at our option.

Defects in quality
44. The quality of the goods shall exclusively be based on the agreed technical delivery directives. If we are to supply goods in accordance with drawings, specifications, samples etc. supplied by the partner, the latter shall assume the risk of suitability for the purpose of use intended. The decisive factor for the contractual condition of the goods shall be the time of the passage of risk pursuant to Section 31.
45. We shall not be liable for defects in quality originating as a result of unsuitable or improper use, defective assembly or commissioning by the partner or by third parties, customary wear and tear, defective or negligent treatment, nor for the consequences of improper modifications or repair work carried out by the partner or third parties without our approval. The same shall apply to defects that only inconsiderably reduce the value or the usefulness of the goods.
46. Unless otherwise agreed, the time limit for claims resulting from defects in quality is 12 months.
47. If inspection of the goods or examination of first samples has been agreed, notification of defects that the partner could have seen during a careful inspection or examination of first samples shall be ruled out.
48. We shall be given the opportunity to verify the defect that is the subject of complaint. Goods giving rise to complaint shall be retuned to us without delay upon request; we shall cover the transport costs if the complaint is justified. If the partner fails to comply with these obligations or makes changes to goods about which a complaint has already been made without our approval, it shall lose all and any claims to defects in quality.
49. In the event of a justified, punctual notification of defects, we shall either repair the defective goods or supply flawless replacements, at our option.
50. If we fail to comply with these duties or fail to do so contractually within a commensurate period, the partner can set us a final period of grace in writing, within which we have to comply with our obligations. After the unsuccessful expiry of the grace period, the partner can demand reduction of the price, withdraw from the contract or do the necessary repairs itself or have this carried out by a third party at our expense and risk. Reimbursement of costs shall be ruled out to the extent that the expenditure is increased by the fact that the goods have been taken to a different location following our delivery, unless this corresponds to the proper use of the goods.
51. The partner’s statutory claims to recourse shall only exist to the extent that the partner has not made agreements with its recipient that exceed the statutory claims from defects. For the scope of the claims to recourse, Section 47, final sentence, shall further apply correspondingly.

Sundry claims, liability
52. To the extent that nothing to the contrary arises below, other and further-reaching claims of the partner against us are ruled out. This shall in particular apply to claims for damages on account of breaches of duties from the contractual relationship and from tort. We shall therefore not be liable for damages that do not occur to the supplied goods themselves. First and foremost, we shall not be liable for loss of profits or other economic damage to the partner.
53. The aforementioned limitations of liability shall not apply to willful intent, gross negligence of our legal representatives or managerial employees or to culpable breaches of cardinal contractual duties. In the event of culpable breaches of essential contractual duties, we shall only be liable - with the exception of cases of willful intent or gross negligence of our legal representatives or managerial employees - for reasonably foreseeable damages typical of the contract.
54. The limitation of liability shall further not apply in the cases in which liability for personal injury or material damage to privately used objects arises from quality defects of the supplied goods, according to the Product Liability Act. It also shall not apply in the event of injury to life and limb or health and in the event of a lack of guaranteed properties if and to the extent that the guarantee had precisely the purpose of securing the partner against damages not occurring on the supplied goods themselves.
55. To the extent that our liability has been ruled out or limited, this shall also apply to the personal liability of our employees, workers, fellow-workers, legal representatives and vicarious agents.
56. The statutory regulations on the onus of proof shall remain unaffected.

Force majeure
57. Force majeure, industrial disputes, unrest, official measures, lack of deliveries from our suppliers and other unforeseen, unavoidable and serious incidents shall release the contracting parties from performance obligations for the duration of the disturbance and to the extent of its effects. This shall also apply if said incidents occur at a point in time at which the contracting party affected is already in arrears, unless it has caused the arrears through willful or gross negligence. The contracting parties shall be obliged to provide the necessary information without delay within a framework of what can be reasonably expected and to adapt their obligations to the changed situation in good faith.

Place of performance, place of jurisdiction and applicable law
58. If nothing to the contrary is set out in the order confirmation, our registered office shall be the place of performance.
59. Our registered office shall be the place of jurisdiction for all legal disputes, also within the framework of processing cheques and bills. We shall also be entitled to sue at the partner's registered office.
60. The contractual relationship shall exclusively be governed by the law of the Federal Republic of Germany. Application of the United Nations Convention of April 11, 1980, concerning Contracts for the International Sale of Goods (CISG - "Viennese Purchase Law") has been ruled out.

Remscheid, November 2014