§ 1 General

(1) The general and delivery terms and conditions below apply exclusively to all deliveries and other services. Our customer declares that it is in agreement with these terms and conditions when placing the order, as well as for future business, even if they are not expressly referred to but are received by the customer with an order confirmed by us. If the order is placed in deviation to our own general and delivery terms and conditions, only our general and delivery terms and conditions shall apply, even if we do not object. Deviating terms and conditions shall only apply if they are expressly recognised by us in writing.
(2) Deviating terms and conditions of the buyer which are not expressly recognised by the seller are not binding, even if the seller does not expressly object to them. Additional verbal agreements require written confirmation in order to become effective. Special written agreements only have priority over these terms and conditions insofar as they deviate from them.
(3) The ineffectiveness of individual provisions in this contract or its components shall not affect the validity of the remaining provisions. The contract parties shall be obliged to replace the ineffective provision within the scope of what is reasonable and in good faith with an effective provision which is equivalent in terms of economic outcome, providing this does not bring about a significant change to the content of the contract. The same shall apply if a matter requiring regulation is not expressly regulated.
(4) The place of fulfilment for all obligations, including the duty of payment, related directly or indirectly to this contractual relationship is the seller’s registered office.
(5) The place of jurisdiction is the court responsible for the seller’s registered office, provided the buyer is a merchant. The seller shall also be entitled to bring a case before a court which is responsible for the registered office or a branch of the buyer.

§ 2 Offers, scope of service and conclusion of contract

(1) Contract offers from the seller are non-binding.
(2) Only the seller’s order confirmation is relevant for the scope of the service owed in accordance with the contract. Additional agreements and promises from representatives require written confirmation.

§ 3 Prices and payment terms

(1) Prices are ex works not including packaging and other shipping and transport charges. Packaging shall be charged at cost and only taken back if the seller is obliged to do so by virtue of mandatory legal regulations.
(2) If there are more than four months between the conclusion of the contract and delivery, and the seller is not responsible for the delay in the delivery, the seller may reasonably increase the price taking into consideration material, labour and other additional costs which are borne by the seller. If the purchase price is increased by more than 40%, the buyer shall be entitled to withdraw from the contract.
(3) If the seller takes into account change requests from the buyer, the buyer shall be invoiced the resulting additional costs.
(4) The invoices are payable with 30 days of the invoice date. If the payment is made by bill of exchange, cheque or other transfer documents, the costs of discounting and collection shall be at the buyer’s expense.
(5) If the payment deadline is missed and the buyer is at fault, interest of 8 % above the current applicable base rate shall be charged while reserving the right to raise further claims.

§ 4 Offsetting and retention

Offsetting and retention are excluded, unless the offset claim is undisputed or is determined without further legal recourse.

§ 5 Delivery deadline

The specification of a delivery time is non-binding and shall be extended appropriately if the buyer for its part is slow or fails to perform a required or agreed cooperative act. The same applies in the event of actions within the scope of industrial disputes, in particular strike and lockouts, as well as the occurrence of unforeseen obstacles which are outside of the control of the seller, e.g. force majeure, late delivery by an upstream supplier, traffic or operational disruptions, materials or energy shortages etc. Changes requested by the buyer to the goods supplied shall also result in an appropriate extension of the delivery deadline.

§ 6 Transfer of risk

The risk shall be transferred to the buyer as soon as the seller has made the goods available to the buyer and has notified the buyer of this.

§ 7 Retention of title

(1) The seller shall retain the title to the goods supplied until full payment. The retention of title also applies until all claims between the buyer and seller, including future and conditional claims arising from the business relationship, have been met.
(2) The buyer is not authorised to assign the goods as security or to pledge the goods; however the buyer shall be entitled to resell the goods which are subject to retention of title in the normal course of business. The buyer assigns herewith to the seller its resulting claims against its business partners.
(3) If the goods are processed by the buyer, the retention of title also covers the new object. The seller shall acquire joint ownership; its portion shall equate to the value of the goods it has supplied as a portion of the value of the goods processed by the buyer. If the new object is sold, the buyer assigns herewith to the seller the portion of the resulting claim which equates to the portion of the seller’s ownership in it.
(4) If the value of all of the existing securities for the seller persistently exceeds the existing claims by more than 20 %, the seller shall at the request of the buyer release securities as the seller chooses.
(5) The seller is entitled to assert retention of title without withdrawing from the contract.

§ 8 Claims for defects

(1) If the purchase is a commercial transaction for both parties, the buyer has to inspect the goods without delay upon receipt and before use, providing this is feasible in accordance with the normal course of business, and if this reveals a defect, to inform the seller in writing without delay and at the latest within 10 days. If the buyer fails to notify the seller, the goods shall be considered to be approved, unless the defect was not noticeable during the inspection. For the rest §§ 377 ff. of the German Commercial Code (HGB) apply.
(2) The claims for defects are restricted to supplementary performance, whereby the seller shall be able to choose between rectification and replacement. If the rectification fails, the buyer shall have the right, as it chooses, to demand a reduction in the payment or cancellation of the contract.
(3) Further claims by the buyer are excluded, unless they result from acceptance of a guarantee. This shall not apply in the event of wilful intent, gross negligence or a breach of material contract obligations by the seller.
(4) The limitation period for claims for defects is one year from the delivery of the purchased item.

§ 9 Liability

Claims for compensation by the buyer are excluded. This shall not apply in the event of wilful intent, gross negligence, a breach of material contract obligations by the seller, acceptance of guarantee or injury to life, body or health.

§ 10 Right to withdraw

After concluding the contract, the seller shall be entitled, as it chooses, to withdraw completely or partly from the contract or to demand the provision of security or payment in advance, if there has been a change in the person of the buyer or the legal form of the company or if it becomes aware of facts which adversely affect the buyer’s creditworthiness.

§ 11 Stoppage of payments

If the buyer stops its payments or if an application is made for insolvency proceedings against the buyer’s assets or the assets of a joint owner of the buying company, all of the seller’s claims shall be due immediately. At the same time all discounts granted and other payment reductions shall no longer apply. The buyer shall also be obliged to establish all inventory from our deliveries still in stock and to return it to our representative.

Last revised: March 2011

Purchasing conditions

§ 1 General

These purchasing terms and conditions shall apply exclusively; any contradictory or deviating terms and conditions of the supplier shall not be recognised by us unless we have expressly confirmed their applicability in writing. These purchasing terms and conditions shall also apply to all future business with the supplier. Individual agreements made with the supplier on an individual basis take precedence over these general purchasing terms and conditions. The language of the contract is German. German law applies exclusively to this contract to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The place of jurisdiction for any disputes arising from this contract is the location of Helmut Kreutz GmbH's registered office, if the supplier is a registered trader, a legal person under public law or a special asset under public law. The same shall apply if the supplier does not have a general place of jurisdiction in Germany, if the supplier relocates its registered office abroad after having concluded this contract or if the supplier’s general place of jurisdiction is not known at the time of commencement of proceedings.

§ 2 Orders

Deliveries for which there is no order in writing shall not be acknowledged. The supplier has to advise us of any obvious errors (e.g. spelling mistakes and miscalculations) and incompleteness of the order including the order documents for the purpose of correction or completion before acceptance.

§ 3 Duty to inform

The supplier has a duty to inform us in good time before any changes in manufacturing processes, materials or bought-in parts for products or services, the relocation of production sites, any changes in any material inspection processes or facilities or other quality assurance measures so that it can be checked whether the changes might have a negative impact on the product.

§ 4 Duty to maintain secrecy

All of the documents provided by us including drawings, sketches and samples remain the sole property of Helmut Kreutz GmbH. The supplier assures that it shall not make these accessible to third parties, that it shall use the documents and samples solely for the purpose of fulfilling this order, that it shall not copy the documents, that it shall handle and store the documents and samples with care and that it shall return them in full upon completion.

§ 5 Transfer of risk, place of fulfilment

The supplier bears the risk until the goods arrive at the place of delivery specified by us in the order. The risk is therefore not transferred to us until handover of the goods at the place of delivery. The delivery shall be made in Germany at the place specified in the order. The respective destination is also the place of fulfilment. If no place of fulfilment has been expressly agreed, the place of fulfilment shall be our company’s registered office.

§ 6 Retention of title

Ownership shall be transferred to us immediately upon handover of the goods. We do not recognise any retention of title by the supplier.

§ 7 Pricing

The price stated in the order is binding. Unless otherwise is agreed on an individual basis, the price includes all of the supplier’s services and additional services as well as any additional costs (e.g. packaging that meets regulatory requirements and transport costs including any possible transport and liability insurance). The supplier has to take back packaging material upon our request.

§ 8 Partial deliveries, short and over deliveries

Partial deliveries do not represent fulfilment, unless we have given our consent to these. Acceptance of a partial delivery shall not constitute any such consent. In the event of a short delivery of no more than 5 %, we have the right to accept the delivery and to cancel the remainder of the delivery that is missing. We reserve the right to return over deliveries at the cost of the supplier.

§ 9 Delivery date

The delivery date stated by us in the order is binding. The supplier undertakes to meet the agreed delivery date. As soon the supplier is aware that a delivery might be late, it must inform us stating the reasons and the length of time by which the delivery is likely to be late. If the supplier is unable to meet the agreed delivery dates, for whatever reason, we shall be entitled, notwithstanding further statutory rights, to withdraw from the contract and procure a replacement for a third party and/or to demand compensation for non-performance. We do not need to set a final delivery date with the threat of refusal to accept delivery. The supplier has to refund any additional costs incurred due to late delivery or performance. The acceptance of a late delivery or performance does not mean that any right to compensation is waived.

§ 10 Origin of goods, preferences, regulations relating to the international movement of goods

The supplier must present a long-time supplier declaration for all items it supplies in which it confirms the status of the goods with regard to their preferential origin. The supplier shall assume liability if it fails to meet this obligation or for any damages incurred as a result of any incorrectly issued declarations. The supplier undertakes to check whether its products are subject, in relation to the international movement of goods, to any prohibitions, restrictions and / or mandatory approvals and where relevant to identify these with comprehensible information in its offers, order confirmations and all documents accompanying the goods accordingly and without any doubt. If the supplier fails to comply with this obligation, it shall assume liability for any damages incurred by us, including additional charges relating to foreign import duties, fines and the like.

§ 11 Warranty

With regard to defects in quality and in title concerning the products (including wrong and short delivery, incorrect assembly and poor assembly, operating or user instructions) and other breaches of duty by the supplier, the legal regulations shall apply unless otherwise is agreed below. The legal regulations (§§ 377, 381 of the German Commercial Code [HGB]) shall apply to the commercial duties of inspection and notification, subject to the following conditions: The duty of inspection is limited to defects which become apparent under external examination at our goods-- in inspection including the delivery paperwork and in the sampling procedure at our quality control (e.g. transport damage, wrong and short delivery). If acceptance is agreed, there is no duty of inspection. For the rest it depends to what extent an inspection is appropriate in accordance with the normal course of business taking into account the circumstances of the individual case. The duty to notify defects which are discovered later remains unaffected. In all cases, notification (of defect) is considered to have been provided without delay and in a timely manner if it is received by the supplier within two weeks.

§ 12 Legal regulations

The supplier shall take into consideration generally accepted engineering standards and official regulations. On the date of delivery the goods must meet all applicable legal and official regulations, including the German Appliances Safety Act (Gerätesicherheitsgesetz), environmental-protection regulations and accident-prevention regulations. If hazardous substances in terms of the German Hazardous Substances Ordinance (Hazardous Substances Ordinance) or products whose use might involve the release of such substances are supplied, the supplier must provide without being asked the data required to issue the EC safety data sheet (§14 of the German Hazardous Substances Ordinance [GefStoffV]).

§ 13 Product liability

The supplier shall indemnify us against all claims relating to non-contractual product liability which are attributable to a defect in the product it has supplied. The supplier shall also assume liability for damages incurred by us as a result of appropriate precautionary measures against a claim relating to non-contractual liability which is attributable to the supplier. The supplier must take out adequate insurance for claims made against it relating to product liability and provide proof of this upon request by way of presenting an insurance policy.

§ 14 Property rights

In the event of a culpable breach of industrial property rights, the supplier shall discharge us and our customers from claims by third parties relating to breaches of copyrights, trademarks and patents, if we did not design the item.

§ 15 Environmental protection

We have an integrated energy and environment management system. We therefore also expect that our customers deliver only energy-saving and environmentally-friendly products.

§ 16 Salvatorius clause

If one of the above agreed clauses should be ineffective in whole or in part, the effectiveness of the remaining purchasing terms and conditions shall not be affected by this. The parties agree that any such ineffective clause shall be replaced by an effective clause which is as close as possible to the meaning of the ineffective clause.

Last revised: July 2012

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