Status per October 2007

§ 1 – Applicability

1. Our terms and conditions only apply for traders as defined by § 24 AGBG (German law for regulating the general terms and conditions of business).
2. The following terms and conditions of sale and supply apply to all our contracts, supplies and other services unless amended or excluded with our express written approval. They also apply if we perform the supply/service without any reservation, despite our knowledge of different terms and conditions of our customer. The terms and conditions of our contract partner only apply, if we have confirmed them in writing.
3. Our terms and conditions also apply to all future contracts, supplies and services even if we fail to send our terms and conditions again together with our quotation or order acknowledgement to our contract partner.

§ 2 – Offer and contract conclusion

1. Our offers are subject to confirmation. Contracts and other agreements only become binding through our written confirmation or our supply/service.
2. All agreements between us and our customer must be made in writing upon contract conclusion. Agreements made between our employees or agents and our customer upon or after contract conclusion must be confirmed in writing to be effective; hence our employees’ and agents’ authority is limited.

§ 3 – Prices, price increase and payment

1. Our prices apply for an ex works delivery and include inland packaging but exclude freight, duty, insurance and statutory VAT which we will charge additionally in each case at the rate applicable on the date of supply or service.
2. In the case of orders which are to be fulfilled six or more weeks after the conclusion of the contract of sale and for which there is an increase in cost prices and/or an increase in the collective pay rates applicable for our company between contract of sale conclusion and order performance, we are entitled to demand a pro-rata price increase on the agreed price which corresponds to the percentage increase in the relevant cost price and/or labour cost.
3. Our invoices must be paid within 14 days from invoice date without deductions unless otherwise agreed or otherwise stated in our offer / our order acknowledgement.
4. We charge the statutory interest from due date without further warning and, at least, interest at a level 3% above the key interest rate of the European Central Bank. This also applies in each case from the first day on which our contract partner is in default through no fault of his own.
5. Our invoices are deemed to have been accepted if our customer does not object in writing within 30 days from receipt of the invoice. We will draw the customer’s attention to this on each invoice.
6. The set-off against counterclaims which are disputed by us and have not yet become res judicata is not permissible. The enforcement of a right of retention due to claims which are not based on the same contractual relationship is excluded if the claims were not accepted by us and have not become res judicata.
7. The customer may only withhold payments on account of a notice of defects if there is no doubt about the justification of the complaint, and then only to an extent which is in reasonable proportion to the discovered defects.

§ 4 – Shipping and transfer of risk, insurance, disposal

1. The risk always transfers to our customer upon shipping of the goods irrespective of the place of shipping. This even applies if we have to install the delivery item on the buyer’s site unless we effect delivery to the buyer’s site with our personnel.
2. If there are no shipping instructions from our contract partner or if a deviation from such seems to be necessary, we will ship the goods by that method of transport we see fit without an obligation to choose the cheapest or fastest shipping method. We only insure the delivery item if requested by our contract partner, in which case we will insure the delivery items against every insurable risk wished by our contract partner, especially against theft and damage to (or loss of) goods in transit, at his expense. We must be notified immediately of any damage in transit, and the recipient must ensure that the relevant claims and reservations are reported to the carrier during delivery.
3. The goods will be stored at the expense and risk of our contract partner if the shipping is delayed at the request of our contract partner or for reasons for which our contract partner is responsible.
4. Our contract partner will bear the cost of the return transport of the used packaging if we are obliged to take back the packaging.
5. Our Customer undertakes to properly dispose of the supplied machines and tools after the end of use at his own cost and in accordance with the statutory regulations. He releases us from our take-back obligation as manufacturer pursuant to Section 10 (2) of the German Electrical Appliances Act (ElektroG) and all obligations in connection with this Act.

§ 5 – Delivery deadlines, call-off orders, default, impossibility of supply

1. Delivery deadlines and dates are only binding if they are confirmed by us in writing.
2. A performance time which is only definite in terms of duration starts at the end of the day on which agreement was reached on all details of the order contents, however not before our order acceptance and not before all documents, approvals/permits, releases to be procured by the buyer have been provided to us and not before the receipt of any advance payment to be made by the buyer.
3. Delays in delivery due to force majeure, war, riot, strike, lock-out, machine breakdown, material shortage or similar circumstances beyond our control release us from the supply commitments entered into for the duration of the hindrance and entitle us, at our option, to withdraw from the contract without the buyer being entitled to withdraw from the contract; any claims by the buyer for delay in delivery, regardless of the reason, are excluded.
4. Our performance obligation is deemed to have been fulfilled when the goods are ready for shipping at our factory as per contract and shipping readiness has been notified to the buyer, and when the goods leave our factory as per contract. If the delivery is delayed due to circumstances for which the buyer is responsible, the delivery time is deemed to have been complied with after the notification of the shipping readiness.
5. We are entitled to make part deliveries. The buyer cannot demand such.
6. In the case of late delivery, improper delivery or non-delivery, the buyer can demand damages in accordance with the legal provisions insofar as there is a breach of duty on our part. However, the buyer must have granted an adequate grace period.
7. Call-off orders are only accepted with deadlines for taking delivery. If the deadline for taking delivery is not exactly specified, it will end 12 months after contract conclusion. The goods must be called off in approximately identical monthly quantities. If delivery is not taken within the agreed period, we are at liberty to deliver the finished goods without further notice or to store them at the buyer’s expense. We are also entitled to fix a final deadline for our customer to take delivery in conjunction with the warning that we refuse to take the goods if the grace period elapses without results. If the grace period elapses without results, we are entitled to terminate our supply obligation and to withdraw completely or partly from the contract or to refuse delivery and demand damages for non-performance. 

§ 6 – Default of acceptance by our contract partner

1. If our contract partner is in default of accepting our performance/delivery in whole or in part, we will be entitled to either withdraw from the contract or claim damages for non-performance after a reasonable grace period granted by us has elapsed without results despite our warning that we will refuse the customer’s acceptance of our performance / delivery following the expiry of that time limit. Our legal rights in the event of default of acceptance by our customer will remain unaffected.
2. The customer must refund our storage costs, warehouse rent and insurance costs for those goods which are due for acceptance but have not yet been accepted. However, there is no obligation on our part to insure the stored goods.

§ 7 – Complaints and return

1. The buyer must immediately notify us of complaints. In such cases, the buyer may only withhold payment if there is no doubt about the justification of the defect complaint. The extent to which money is withheld must be in reasonable proportion to the defect of quality. If the defect complaint is found unjustified, we are entitled to demand compensation from the buyer for the incurred cost.
2. If the complaint is justified and brought to our notice within the limitation period of 2 years, we will remedy the complaint, at our option, by way of repair, substitute delivery or a new supply of services. The cause must have already existed at the time of risk transfer, regardless of the prior operating time.
3. Goods supplied free from defect will only be taken back by way of exception, with our express written approval and at a charge to the buyer of 20 % of the invoice amount.

§ 8 – Nature of goods, increased/reduced performance

1. Our specimen and samples apply to approximate view objects for quality, dimensions and other characteristics. Our information on dimensions, characteristics and intended purpose only serves the description and includes no warranty of merchantability.
2. In the case of technical justified need, we reserve the right to deliver the ordered goods with deviations of condition, dimensions and other characteristics insofar as this does not adversely affect the usability of the delivered items.
3. For serial and mass articles, i.e. baking plates, we are entitled, to deliver and invoice a variance of +/- 5%  from the ordered quantity (100 %).

§ 9 – Defects and liability

1. We give our customers a 12-month warranty limited to defects which are proven to be due to a circumstance arisen prior to the transfer of risk. This does not apply in the case of harm to the body or health, deliberate or grossly negligent breach of duty, fraudulent concealment of a defect, or if longer warranty periods are required by law. The statutory regulations on the expiry suspension, running time suspension and restart of the periods remain unaffected. Defects of quality must be immediately notified to us in writing.
2. The buyer must give us an opportunity for subsequent performance within a reasonable period. If the subsequent performance fails, the buyer can withdraw from the contract or reduce the purchase price without prejudice to any claims for damages falling under the compulsory liability. Warranty claims are not permissible in the case of insignificant deviation from the agreed quality, insignificant impairment of the fitness for use, normal wear and tear or damage caused by faulty assembly or excessive stress after the transfer of risk. Improper modifications to the goods or repair work carried out by the buyer or the consequences arising there from are also excluded from our warranty.
3. Our liability for further claims is exclusively in accordance with the legal provisions; this particularly applies to the provisions of the Product Liability Act.

§ 10 – Reservation of property rights

1. In the case of breach of duty by the buyer, especially default in payment, we are entitled to withdraw from the contract or to take back the delivered goods/services after the fruitless expiry of a reasonable grace period. The legal provisions in respect of the dispensability of the setting of a time limit remain unaffected. The buyer is obliged to return the delivered goods/services.
2. The goods remain our property until all our claims against the buyer have been fulfilled. Until such time, the buyer is not entitled to pledge or assign the items to a third party as security for a debt. In the case of payment by a bill of exchange issued and forwarded by us and accepted by the buyer, our claims are only deemed to have been fulfilled when the bill has been honored by the acceptor and we have hence been discharged from the endorser’s liability. Insofar as the buyer becomes owner of the items subject to our reservation of ownership as a result of further-processing or mixing, the buyer now assigns herewith the ownership of the new item in order to provide security for the aforementioned claims and agrees to keep these in safe custody on our behalf. A reselling is only permitted to resellers in the ordinary course of business and only on the condition that the reseller receives immediate payment from his customer or makes the reservation that the ownership only passes to the customer upon full payment of the price. In such cases, we give our consent to the transfer of our property to the third party. In the case of a resale, the buyer assigns for security purposes his future purchase price claim to us with the conclusion of the transaction without requiring a special declaration. The reseller is authorized to collect the newly arisen purchase price claim until revoked. Any collection and intervention costs will be borne by the buyer.
3. If the value of the security exceeds our claims by more than 20%, we will, upon the buyer’s request, release a commensurate part of the security of our own choice.

§ 11 – Ownership of documents, confidentiality

1. Illustrations, drawings, calculations, samples and models remain our property. Our customer undertakes not to make such items accessible in any form whatsoever to third parties without our express approval. For each culpable breach of the aforementioned obligations, the customer promises to pay us a contractual penalty of € 10,000.00 in each particular case.
2. The contract partners mutually undertake to treat any commercial and technical details which they become aware of as a result of the cooperation and are not publicly known as if they were their own trade secrets and not to disclose them to third parties. For each breach of the secrecy obligation, the contract partners promise each other to pay a contractual penalty of € 10,000.00 per particular case.

§ 12 – Industrial property rights

If the goods must be produced in accordance with drawings, samples or other information of the contract partner, the contract partner guarantees that no third-party rights such as patents, utility models, other property rights or copyrights will be infringed by such production. The buyer indemnifies us against any third-party claims resulting from any infringement of such rights. In addition, our contract partner will hold us harmless for all costs incurred by us in connection with any third-party assertion of infringement of such rights and for our legal defense against such claims.

§ 13 – Place of jurisdiction

1. The place of delivery and payment as well as the place of exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Aachen / Germany. It is also agreed in writing that Aachen / Germany will be the exclusive place of jurisdiction for collection procedures.
2. The contractual relationship is subject to German law or in case of subordinate to European Community law.