General Terms and Conditions of Business

(Status: July 2015)

§ 1 General – Scope

The present terms and conditions shall apply to all present and future business relations with companies such as defined in Section 14 BGB [German Civil Code]. All our deliveries, services and offers are governed exclusively by the present Terms and Conditions. Diverging, contrary or complementary general terms and conditions, even if known to us, shall never be components of the contract, unless we have explicitly consented thereto in written form. Any conflicting confirmations by the buyer in the light of its own terms and conditions for business and purchases are hence expressly ruled out.

§ 2 Formation of Contract
1. Our offers are subject to change. Unless otherwise agreed, our prices are ex-works or ex-warehouse and do not include packaging; they are subject to the addition of value added tax in the respective amount as required by law.
Contract formation shall depend on our written confirmation of an order placement. Verbal arrangements, in particular amendments and additions, shall require the written form to take effect. This also applies to verbal arrangements that amend this agreement.

Prospectuses, drawings, advertisements etc. issued by us and the information contained therein, such as weight, quality, measurements, properties and condition as well as services shall only be deemed binding if we expressly say so. Information in descriptions and offers valid at the time the contract is formed shall only be deemed approximate.

2. With the order placement the customer declares its binding intention to purchase the item ordered. We shall be entitled to accept the offer embodied by the order to enter into a contract with the customer within two weeks after receiving the order. Acceptance of the order shall be either written or in the form of delivery of the item to the customer.

3. If the customer orders the item over electronic channels, we shall save the text of the contract and, if so requested, send it by e-mail to the customer along with the present Terms and Conditions.

4. Contract formation shall be subject to the condition that our suppliers provide us with deliveries correctly and punctually. This shall only apply in the event we are not responsible for the failure to deliver. The customer shall be informed immediately of any non-availability. Any payment rendered shall be immediately refunded.

5. If, after the contract has been formed, freight charges, duties or fees increase or are introduced or if the prices of raw materials have risen by at least 10% since the last purchase, we shall be entitled to modify our prices accordingly - even when carriage is prepaid and/or deliveries are cleared.

§ 3 Delivery and Default with Delivery
1. Delivery dates and deadlines shall only be approximate unless we expressly state in written form that they are binding. In the absence of specifics, deadlines and dates shall be deemed non-binding.
Compliance with a delivery deadline requires that all documents of relevance to our carrying out the order are made available to us immediately. The delivery deadlines commence upon receipt of our order confirmation yet not before all necessary details have been clarified; they imply ex-point of delivery. If the contract is subsequently amended, a new delivery date or deadline shall be arranged. In the absence of such an explicit arrangement, the delivery deadline shall commence anew on the day the contract is amended.
Compliance with the delivery deadline shall be deemed assured when readiness for dispatch is declared in a situation where dispatch is delayed for reasons for which we are not responsible. If dispatch is impossible for reasons for which we are not responsible after readiness for dispatch has been declared, the goods are considered delivered when readiness for dispatch is declared.

2. Circumstances of force majeure, problems with the supply of energy and raw materials, unrest, strike, lock-out and serious unforeseeable operational problems with us or our suppliers shall lengthen the delivery dates and deadlines by the period of delay occasioned by said circumstances. If the deadline for delivery passes, the customer shall not be entitled to cancel the contract or to hold us responsible for any damages thereby incurred.

3. We shall reserve the right to deliver in appropriate instalments. If we are responsible for not complying with an arranged delivery deadline, the ordering party shall after a certain period of time - to the exclusion of other claims – be entitled to cancel the contract provided that when setting said period of time the buyer has made it clear that it no longer requires the service.

§ 4 Retention of Title
1. We shall retain title to all delivered goods until the purchase price has been paid in full and to all claims to payment derived from business relations at the time the service is provided.
We shall also retain title to all subsequently generated claims to payment owed by the buyer (e.g. with repairs or the delivery of replacement parts or other services).

2. During the period in which we retain title to the goods, the customer shall be entitled to possess and use the goods for as long as it satisfies its commitments and does not default with payment. The customer undertakes to treat the goods with care. Where maintenance and inspection work is required, the customer shall have this carried out at regular intervals at its own expense.

3. In cases of third-party access to the goods, in particular attachment or execution of a third-party contractor’s lien as well as if the goods are damaged or destroyed, the customer shall duly inform us immediately in writing and inform said third party that we retain title to the goods in question. The buyer shall bear the expense incurred in correcting the situation and regaining hold of the goods, unless it is possible to collect expenses from the third party.
The customer shall inform us immediately of any change in corporate ownership and any change of its own place of residence.

4. If the customer behaves contrary to contract, in particular if the customer defaults with payment and breaches commitments derived from our retention of title or its duties stipulated by these Terms and Conditions, we shall be able to cancel the contract and call for the surrender of the goods after setting an appropriate period or grace or issuing a reminder.

5. If we call for the surrender of the goods, the customer shall immediately hand them over to us to the exclusion of all and any rights to keep the goods (except for those determined as legally binding).
If we apply our retention of title by taking the goods subject to our retention of title back again, we shall be entitled to give written notification and after a suitable period of time have the goods sold or auctioned on the open market. The returned goods subject to our retention of title shall generate proceeds, at most, however, the agreed delivery prices. The right to claim compensation for damages, in particular for lost profits, shall be retained.
All costs incurred in having the goods returned and sold again shall be borne by the buyer. In the absence of evidence, the costs of realization shall be 10% of the proceeds gained including purchase tax. .Costs of realization shall be greater or lower if we provide evidence of greater costs or the customer evidence of lower costs.

6. The customer shall be entitled to sell the goods in regular business procedures. The customer shall now assign to us claims to payment due to him from the resale to a third party. We accept said assignment. After the assignment the customer shall be empowered to collect the payments due. We shall also retain the right to collect payment ourselves the moment the customer fails to satisfy its commitment to regular payment and defaults in payment.

At our request, the customer undertakes to hand over all information and documents required to assert our rights in respect of the customers of the buyer.

The buyer shall not be entitled to dispose otherwise of the goods subject to our retention of title, in particular not to pledge or assign them as security.

7. The processing and working of the goods by the customer shall always take place in our name and on our behalf. If the product is processed with items not belonging to us, we shall acquire co-ownership of the new item in the amount of the invoice value of the goods we supplied in proportion to the other processed items. The same shall apply if the goods are compounded with other items not belonging to us.

8. In the course of commercial dealings, we shall be entitled subject to Section 369 HGB [German Commercial Code] to keep all documents, data, materials and other items provided by the buyer until such time that all claims derived from business relations have been fully satisfied.

§ 5 Payment
1. Unless otherwise agreed, our invoices shall be due for payment with 3% discount inside the space of 10 (ten) days from the date of invoice; after this time they shall be due for payment without any deduction. The grant of discount requires that all previous due invoices have been paid in full. Cheques and bills of exchange shall only be accepted if specifically arranged and only on account of performance. All costs thereby involved shall be charged to the buyer.

2. The customer shall only be able to offset against our claims if its own counterclaim is undisputed or has been declared legally binding. The customer shall only be able to assert a right of retention if it is founded on claims derived from the transaction for which the invoice was compiled.

3. For the period of time in which it defaults in payment, the customer shall pay interest on the debt to an amount of 8 percentage points above the respective valid baseline interest rate. We explicitly retain the right to provide evidence of and assert higher losses as a result of the default.

4. The failure to comply with terms of payment, insofar as the customer is responsible for this, or any situation that is apt to lessen the credit worthiness of the customer shall result in all our claims becoming due for immediate payment. We shall retain the right to call for advance payments for deliveries still outstanding, following an appropriate period of time to cancel the contract and demand compensation for damages, to forbid the buyer to resell the goods and to take back goods not yet paid for at the expense of the customer.

§ 6 Passage of Risk
1. The risk of accidental perishing or accidental deterioration of the goods shall pass to the customer the moment they are handed over, transferred to the carrier, the forwarding agent or the person or institution appointed to dispatch the consignment. The risk shall also pass to the buyer if the buyer delays in acceptance. In cases of delays in dispatch for which the buyer is responsible, the risk shall pass to the buyer the moment readiness to dispatch the consignment has been announced.

2. We shall decide on dispatch that shall be at the expense of the buyer. We shall choose packaging, dispatch route and means of transport. The goods shall only be insured against damages during transport at the express wish and expense of the buyer.

§ 7 Guarantee
1. Initially we shall grant a guarantee for defective goods by providing a remedy or a replacement. Remedy means that defective parts are replaced or repaired without charging for the necessitated expenses of wages, material and freight. Replaced parts remain our property.
In the event the remedy is not successful, the customer shall be able to choose between reducing payment (reduction in price) and cancelling the contract (cancellation). In the event of only a minor infringement of contract, particularly with minimal defects, the customer shall not, however, be entitled to cancel the contract.

2. The customer shall give written notice of obvious defects inside a period of two weeks after receiving the goods. Otherwise it shall not be possible to assert any guarantee claims. The punctual dispatch of the written notice shall suffice  to prove satisfaction of the set deadline. The customer shall bear the full burden of proof for all conditions to assert claims, in particular for the defect itself, the point in time it was ascertained and for the punctuality of the customer’s complaint of the defect.

3. Should the buyer inform us that the goods are not flawless, we shall be able to choose between having the defective part sent to us for repair and having the customer keep the defective part, allowing us to carry out repairs on its own business premises during our regular working hours. The costs of dispatch or travelling to the customer’s premises plus the proportionate costs of wages shall be borne by the customer if the defects in question are not subject to the guarantee.

4. The period of guarantee amounts to one year as from the passage of risk. This shall not apply if the customer fails to inform us of the defect punctually (see No. 2 of the present provision).

5. If operational or maintenance instructions for the goods are not heeded, if modifications are made to the products, parts replaced or consumables used that are not released for use, the guarantee shall cease to apply, unless the defect is not cause thereby.

6. Only the manufacturer’s product description shall be considered to reflect the properties and condition of the goods. Public statements, active promotion or advertisements of the manufacturer do not constitute any contractual information relating to the properties and condition of the goods.

7. If the customer receives defective installation instructions, we only undertake to provide flawless instructions and shall only do so if the defective installation instructions hinder proper installation.

8. The customer does not receive guarantees in the legal sense from us. Manufacturer’s guarantees shall not be affected hereby.

§ 8 Restrictions of Liability
1. We shall be liable for wilful intent and gross negligence. For slightly negligent breaches of duty our liability shall be excluded if the breach was not a culpable breach of an essential contractual duty or damage to life, limb or health. An essential contractual duty is an obligation, the fulfilment of which is required for the proper performance of the contract and compliance with which a contracting party may ordinarily trust and rely. For negligent breaches of an essential contractual duty our liability shall be restricted to the damages that are foreseeable and typical for this sort of contract.

2. The above restrictions of liability shall not affect customer claims derived from product liability. Furthermore, they shall not apply for injury to life and limb or loss of life of the customer that is attributable to us.

3. Claims to damages of the customer in respect of a defect shall become time-barred one year after delivery of the goods. This shall not apply if injury to life and limb or loss of life of the customer is attributable to us.

§ 9 Export
The export of our goods to countries that are not part of the EU shall be subject to our written consent. The customer shall be responsible for procuring all official import and export permits. Unless otherwise stated in the present Terms and Conditions, Incoterms 2001 shall govern the export business.

§ 10 Place of Fulfilment, Place of Jurisdiction, Applicable Law
1. Place of fulfilment and exclusive place of jurisdiction for present and future action derived from the current business relations including action for asserting claims relating to documents, bills of exchange and cheques, providing the customer is a business person, corporate body under public law or legal entity under public law shall be our registered seat of business. The same shall apply if the customer does not have any general place of jurisdiction in Germany or if, at the time action is filed, the customer’s place of residence or regular whereabouts is unknown.

2. The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

§ 11 Severability Clause
Should individual provisions of the contract including the present General Terms and Conditions of Business be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected hereby. The partially or wholly invalid regulation shall be replaced by one the business-related outcome of which is as close as possible to that of the invalid provision. The same shall apply to remedy any contract omissions.

Language
In case of any inconsistencies between the English and the German version of these General Terms and Conditions the German version shall prevail.

Address

VOSS-HELME GmbH & Co. KG 
Kokenhorststr. 24 
30938 Burgwedel/Germany

Phone: +49 (0) 51 39 - 95 95 30
Fax: +49 (0) 51 39 - 95 95 39

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