GTC

General business conditions for deliveries and services
M.E.SCHUPP Industriekeramik GmbH & Co. KG, 52078 Aachen
Status: 04th August 2004

1. Validity:
2. Offer and closing:
3. Delivery list and delay
4. Dispatch, passing of risk and packing:
5. Prices and payment
6. Reservation of title
7. Complaint, guarantee and liability
8. General liability limitation:
9. Data security
10. Place of performance, legal domicile, right to be exercised:

1.01 These conditions shall be valid for all agreements, deliveries and other services, including consulting services, in business volume with non-consumers in sense of § 310 Paragraph 1 Civil Code purchasing conditions of the purchaser / orderer shall be herewith disagreed.  

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2.01 The offers included in our catalogues and sales documents, as well as – as far as not exclusively described as binding - in Internet shall always be subject to change without notice, i.e. should be understood only as request for filing of an offer. Orders shall be only then binding for us if they have been confirmed by us in writing. Even a delivery note or goods invoice shall be valid as order confirmation in case of immediate order execution.

2.02 As far as our salesperson or sales representative do not meet verbal additional agreements or assurances, which go beyond the written agreement, they require written confirmation.

2.03 Preceding regulations shall not be valid for verbal explanation of company management or such persons, who have been authorized by us.

2.04 We reserve the proprietary and origination rights for illustrations, drawings, calculations, assembly- and other documents.

2.05 For our commercial customer the following shall be further valid: Additional conditions, even of technical type, result from additional delivery conditions, price lists, especially concerning measure and their calculation, price determination, boxes- and packing content, packaging, freight costs. The commercial practices shall be valid as far as nothing is included in it and also no special agreements have been made.

2.06 If we become aware of facts after conclusion of agreement, especially delay of payment in view of earlier deliveries, which conclude as per obligatory commercial discretion that the purchase price claim is endangered through lack of capability of the purchaser, we shall be authorized, to demand advance payment or corresponding securities from the purchaser under setting of a suitable period as per his choice and in case of refusal to step back from the contract, whereby the invoices shall be due for already completed part deliveries.

2.07 Requests of the purchaser for additional change or cancellation of the order can be considered only on the basis of special agreement and only as long as manufacturing, layout or processing has not begun.

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3.01 As far as an exclusively binding promise shall not be available from our side, a delivery period shall be approximately agreed.
It begins with the day of the clarification of all technical and other details of the order, the procurement of all required documents and the agreed advance payment. It extends to the period, where the purchaser is in delay with his contractual obligations – within a continuous business connection even from other agreements.

3.02 Partial services and partial deliveries shall be permissible in reasonable scope. We can invoice the advance payments in suitable scope.

3.03 An execution or delivery period shall be extended – even within a delay – appropriately in case of admittance of higher impact and all unforeseen obstacles occurring after conclusion of contract, which we do not have to justify (especially even operating disturbances, strikes, lockouts or disturbance of line of communication), as far as such obstacles shall be demonstratably of considerable influence on the intended execution or delivery. This also shall be valid if these circumstances occur in case of prior vendors, additional vendors or  sub-vendors. We shall inform the purchaser of the beginning and end of such obstacles as soon as possible. The purchaser can demand an explanation from us whether we are stepping back or would deliver within a suitable period. If we do not explain ourselves immediately, the purchaser can step back. Claim for damages shall be excluded in these cases.

3.04 In view of timely deliveries we shall only be liable for own faults and for our auxiliary persons. We shall not assume liability for faults of our sub-vendors. We shall be however obligated to transfer to the purchaser the possible claim for damages against the sub-vendors.

3.05 In case of delay in delivery the purchase shall be obligated, to explain within a suitable period on our demand, whether he still insists on delivery due to the delay or he is stepping back from the contract and/or demands claim for damages instead of the service.

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4.01 Dispatch way and means of dispatch are up to our choice. The packaging is not position-wise, but strict after transport-technical and technical as well as environmental points of view. The bigger part of the unit always determines the packaging size.

4.02 Our deliveries are from stock or ex works. The transfer of perils towards the purchaser is the moment of handing over of the product to the forwarder – no matter whether that is appointed by the purchaser, manufacturer or by us. This is also valid for part deliveries as well as free deliveries. With delivery by our vehicles the transfer of perils is given as soon as the product is provided at the place stated by the purchaser.

4.03 If the dispatch is delayed by request or by liability of the purchaser, the product is stored at the expenses of and at the risk of the purchaser. In this case, the announcement of the readiness for dispatch is on a par with the dispatch. With the storage, the commercial invoice becomes due immediately.

4.04 If the transport by own vehicle or by foreign vehicles is carried out, the handing over of the product is presumed to be valid at the latest, as soon as the product is available to the consignee on the lorry at the delivery place on a fastened roadway. If the entrance is not accessible in the opinion of the deliverer, the handing over takes place where riskless start and depart of the vehicle is guaranteed.

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5.01 The prices shall be inclusive of packing – and other dispatch costs and also Value Added Tax.

5.02 We assume for our price calculations that the positions taken as basis for the offer details remain unchanged, required preparation has already been carried out and we can provide our services in a line without any obstacle. Our offer shall be based upon the description of service of the purchaser.

5.03 If the delivery or service shall take place 4 months after the conclusion of contract or later, the contracting parties shall be obligated to again negotiate the prices in case of change of costs, wages etc.

5.04 We shall be authorized to demand advance payments, if our service shall be delayed over the agreed period without our fault.

5.05 If it is not agreed otherwise, our deliveries and services  shall be payable within 30 days.  Payments shall be always related for settlement of oldest payable accounts payable including interest on debt accrued on the same. Saccounts shall not be granted, if the purchaser is in arrears with the payment of earlier deliveries.

5.06 Payments in so-called Check-Bill of exchange- procedure always require the special agreement. Credit items shall take place over bill of exchange and checks less expenses with value of the day, on which we can have the equivalent value.

5.07 Our claims shall be immediately due independent of the validity period of the discounted and credited bill of exchange, if the payment conditions shall not be observed facts are known, which conclude that our purchase price requirements are endangered by lack of service capability of the purchaser.

5.08 If the purchaser makes a payment delay or he does not encash a bill of exchange in case of due date, then we are authorized to cancel the goods, if required to enter the operation of the purchase and to take away the goods.  Apart from that we can prohibit the disposal and removing of the delivered goods.  The withdrawal does not mean a withdrawal from contract.

5.09 In cases of paragraphs 5.07 and 5.08 we can cancel the direct debit authorization (paragraph 6.05) and demand advance payment for outstanding deliveries. The purchaser can however turn away these as well as legal consequences mentioned in paragraph 5.08 through  security to the amount of our endangered payment claim.

5.10 Default interest shall be calculated with 10% p.a. over the base lending rate (§ 247 BGB (Civil code)). It should be fixed higher or lower, if we prove a load with higher interest rate or the purchase a less load.

5.11 A refusal to pay or – retention should be excluded if the purchaser knew the fault or other reasons of complaint. This shall also be valid in case it was not known to him as a result of carelessness, unless we fraudulently fail to disclose the fault or other reasons of complaints or have taken over a guarantee for the consistency of the matter. Summation shall be permissible only with undisputed or valid determined counter claims. A right to withhold from earlier or other businesses of current business connection cannot be made valid. The payment can be withheld due to faults and other complaints only in an appropriate scope.

5.12 Any agreed security services can be replaced by us through guarantee from the net amount.

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6.01 We reserve the ownership of goods till complete payment of the purchase price. In case of goods, which the purchaser receives from us in context of a continuous business relationship, we reserve the ownership till all our requests from the business connection, including the future demands – even from agreements concluded simultaneously or later – shall be settled. This shall also be valid if individual or all requests shall be taken over by us in a continuous invoice and the balance shall be drawn and is acknowledged. Always the larger measure of the unit defines the packaging size, in connection of payment of purchase price by the purchaser. Reservation of title not before payment of bill of exchange by the purchaser as drawee. In case of default of payment we are authorized for withdrawal of goods after reminder and the purchaser shall be obligated for withdrawal.

6.02 If the goods with retention of title shall be associated with the other goods by the purchaser, then we are entitled to the joint ownership of the new matter in relation to the invoice value of other goods and the processing value. If our ownership lapses through association, blending or processing, then the purchaser transfers to us his property rights at the time of conclusion of contract to the new matter in scope of the invoice value of the goods with retention of title and keeps it non-paid for us. The proprietary rights arising after this shall be valid goods with retention of title in sense of No. 6.01.

6.03 The purchaser should immediately inform us about possible accesses of third party to the goods with retention title and the assigned requests. He can sell the goods with retention title only in usual business volume to his normal business conditions and as long as he is not in default, with a prerequisite that the requests shall be transferred to us from the resale as per the subsequent numbers 6.04 up to 6.05. He is not authorized for other instructions about the goods with retention of title.

6.04 Requests of the purchaser from the resale of the goods with retention title shall be already assigned to us. We accept this assignment.  They serve in the same scope for security like the provisional goods. The same shall be valid for the claim for granting of a claim securing mortgage as per § 648 BGB (Civil code). If the provisional good shall not be sold by the purchaser together with other, not by delivered goods, then the claim from the resale, non delivered goods, then the claim from the resale in relation to invoice value of our goods shall be assigned to other sold goods.  In case of sale of goods, to which we have co-ownership share as per No. 6.02, a part shall be assigned to us corresponding to our co-ownership share.
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6.05 The purchaser shall be authorized to collect claims from the resale, unless, we cancel the collection authorization in cases mentioned in chapter 5.09. He shall be obligated on our demand, to inform us immediately of the acceptor of the assignment – as far as we do not do it ourselves – and to give us information and documents required for the collection, which if required includes the names and addresses of the debtors.  The purchaser is in no way authorized for further assignment of claim. An  assignment under genuine factoring shall be granted to the purchaser only under prerequisite that this shall be shown under announcement of Factoring-Bank and the accounts of the purchaser maintained over there and the factoring-revenue exceeds the value of our secured claim. Our claim shall be due immediately with the credit of factoring-revenue.

6.06 As far as the value of provisional goods is stable, this results from our invoice amount (invoice – value). We shall be obligated, on demand of the purchaser to release the securities appertaining us to the extent, as its realizable value exceeds the claim to be secured by 30 %.

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7.01. For fault in sense of § 434 BGB (Civil code) we shall be liable only as follows: Due to the special characteristics of our goods and the risk of damages, the purchaser shall be obligated for immediate checking.
All obvious and / or known faults, missing parts and wrong deliveries should be notified in writing latest within a week, in each case before processing or assembly. Further obligations of the businessman as per § 377 HGB (German Commercial Code) shall remain unaffected. Through the manufacturing of conditional deviations in measures, content, thickness, weights and color toning – as far as there is no consistency guarantee in sense of § 443 BGB (Civil Code), - in context of the customary tolerances.

7.02 If the purchaser determines faults of goods, they should not be distributed, further sold or further processed, till an agreement is reached about the processing of complaint, or a perpetuation of evidence procedure takes place by the committee of experts appointed from the Industry- and chamber of Commerce with registered office of the purchaser.

7.03 The purchaser shall be further more obligated, to give us an opportunity, to determine the fault on location and place or on our demand to provide the objected matter or sample of the same; in case of intentional denial the guarantee shall be cancelled.

7.04 Physical characteristics of our product are not capable of complaint, however are valid due to technical data sheets.

7.05 We do not take over any warranty for damages, which go back to unsuitable or improper usage, faulty assembly not intended by us, implementation, change or repair, faulty or careless handling or natural abrasion.

7.06 In case of authorized complaints we shall be authorized under consideration of type of fault and authorized interests of the purchaser, to determine the type of supplementary performance (compensation delivery, rework). Any guarantee declarations of manufacturing, which are out of our own seller warranties, shall be given by us without own obligation.

7.07 The expenditure required for supplementary performance, especially transport- and transport expenses shall not be covered by us, as far as they rest upon the fact that purchased things were used at another place after the delivery than the location of the occupational activity or commercial establishment of the receiver, unless the usage corresponds to the customary usage of things. Recourse claims as per §§ 478, 479 BGB (Civil Code) remain unaffected.

7.08 Recourse claims as per §§ 478, 479 BGB (Civil Code) shall only exist, as far as the claim was authorized by the user and only in legal scope, not compared with goodwill regulations and assume the observance of own duties of recourse entitled, especially the observance of obligations.

7.09 The purchase has to immediately inform us about a case not covered by warranty in case of a user.

7.10 Material defects claim come under the statute of limitations in 12 months.

7.11 The chapter 8 shall be valid for the claim for damages (General liability limitation)

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8.01 Damage- and expenditure claim for compensation of the purchaser (subsequently called as claim for compensation), for whatever legal argument, especially due to violation of duties arising from a contractual obligation and from illegal handling shall be excluded.  This shall not be valid, in cases of transfer of a guarantee or of a procurement risk. This shall not be furthermore valid, as far as we compulsively guarantee e.g. as per Product Liability Law, in cases of rough fault due to the injury of life, body or health, and also the violation of essential  duty under a contract. The claim for compensation for the violation of essential duty under a contract is however restricted to the contract typical, predictable damages, as far as no rough damage is charged to us or due to injury to life, body or health is guaranteed. A change of burden of proof to the disadvantage of the purchaser shall not be thus connected.

8.02 This regulation shall be accordingly valid for the purchaser.

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The purchaser shall be herewith informed that we process the personal data obtained in the context of the business relation as per the regulation of the German Data Protection Act.

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10.01 Place of performance and exclusive legal domicile for deliveries and payments (including check and bill of exchange collars) as well as all arising disputes, as far as the purchaser is a businessman, judicial person of the public right or public – legal separate assets, the head office of our company is in 52078 Aachen. We are however authorized to sue the purchaser on his legal domicile.

10.02 The contractual relationship exclusively regulates as per the law valid in Germany, under exclusion of UN-Sales law.

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