General Terms of Delivery and Payment of Oskar Nolte GmbH
1. General
The present Terms of Delivery and Payment shall apply exclusively to all business relations, thus also to future transactions. Opposing terms, in particular the Purchaser’s purchasing terms shall not be recognized unless their validity is explicitly consented to by Oskar Nolte GmbH. The Terms of Delivery and Payment of Oskar Nolte GmbH shall apply even in those instances where we unreservedly fill orders having knowledge of opposing terms of the Purchaser or of any other terms deviating from our Terms of Delivery and Payment.
Any verbal statements of whatever nature deviating from the Terms of Delivery and Payment, in particular also assurances given by agents, shall be insufficient at law without our express confirmation in writing.
2. Prices and Payments
The prices are to be understood unless agreed otherwise in EURO ex factory including loading on our premises plus the value added tax applicable at the time of invoicing. Auxiliary equipment made available on a loan basis (such as containers, carts, pallets etc.) shall have to be returned in perfect working order immediately after use. The costs for returning such equipment shall be borne by the Purchaser. In case of loss or damage Oskar Nolte GmbH shall charge the replacement value or the repair cost. The prices shall be subject to change unless they are explicitly confirmed as fixed prices and entitle the Purchaser to a relative price adjustment in the event that wage increases or material price increases occur within four months after the contract was signed. The same shall have to be proven to the Purchaser upon request.
All payments have to be effected at due date without any deduction free paying office of Oskar Nolte GmbH. Unless explicity agreed upon otherwise Oskar Nolte GmbH shall be entitled in case of an exceedance of dates of payment fixed by it or contractually stipulated to charge the bank interest usual at the time of the exceedance without the existence of the prerequisites of a default. Without any further proof Oskar Nolte GmbH shall be entitled to claim at least due date interest at the rate of five percent p.a.
In the event of a previous or subsequent granting of a term of payment deviating from above Terms of Payment in favour of the Purchaser of more than thirty days from due date then the due date interest shall amount to at least 5 % above the base interest rate, in case of more than sixty days at least 7 % above the base interest rate. The Purchaser defaults when he exceeds an agreed term of payment or if no such term was agreed when he fails to pay within a period of thirty days after due date and receipt of an invoice or when he does not pay despite due date and reminder.
If the conditions of a default are given then Oskar Nolte GmbH shall be entitled to claim default interest at the rate of 8% above the base interest rate unless Oskar Nolte GmbH presents proof of a higher damage caused by default. Oskar Nolte GmbH shall be entitled to demand compensation for all damages caused by the delay including reasonable costs for asserting its rights. If only because of the absence of fault on the part of the Purchaser no delay occurs Oskar Nolte GmbH shall nonetheless be entitled to claim due date interest in accordance with the preceding provisions.
Bills of exchange and cheques shall be accepted on account of performance only. Any expenses or other costs resulting in connection therewith shall have to be settled in cash forthwith, yet at the latest within one week after notification. If according to a mutual agreement a bill of exchange is to be discounted at a later date then due date interest in accordance with the preceding provisions – at least at the rate of 5 % p.a. – will be incurred.
The Purchaser shall not be entitled to any offsetting unless the counterclaim is uncontested or declared legally valid. The Purchaser shall be authorized to exercise the right of retention only to the extent to which his counerclaim is uncontested or declared legally valid and is based on the same contractual relationship as the claim of Oskar Nolte GmbH.
In case of a default of payment, financial difficulties on the part of the Purchaser as well as futile compulsory execution measures or the petition to institute insolvency proceedings all claims of Oskar Nolte GmbH including those held over - by way of accepting a bill of exchange, for instance – shall fall due forthwith. Previously granted discounts and rebates shall become obsolete.
3. Time of Delivery
Stated delivery times shall be approximative only. Oskar Nolte GmbH shall be obliged to act only if the Purchaser has satisfied his contractual obligations. This applies in particular to cooperative action to be provided by the Purchaser such as the punctual calling in case of call-off orders and down payments as previously agreed. In case the Purchaser fails to provide essential cooperative action Oskar Nolte GMBH
then the agreed delivery times shall be extended by the duration of the delay. In the event of an impossibility or inability to deliver which Oskar Nolte GmbH is not answerable for Oskar Nolte GmbH shall be relieved of the obligation to deliver; as for the rest, the legal provisions shall apply in this particular case. The Purchaser shall be obliged to accept part performances from Oskar Nolte GmbH unless the Purchaser is unable to make proper use of such part performance and for that reason is rightly not interested in it.
If for reasons which it is not answerable for Oskar Nolte GmbH defaults totally or partially with the performance due then its liability to make good any damages caused by delay shall be limited to the usually foreseeable damage. If the Purchaser defaults in accepting the delivery or if he violates other duties of cooperation then he will be charged the extra costs resulting therefrom beginning in the week following the notification of readiness for delivery (§ 373 l HGB), yet when stored on the premises of Oskar Nolte GmbH at least at the rate of 2.5% of the invoiced price for every commenced month. But the Purchaser is free to prove that extra costs were not incurred at all or that they are considerably lower.
Oskar Nolte GmbH shall be entitled, yet not obliged to make use of the possibilities provided by § 373 ll of the German Commercial Code (HGB) after expiration of a period of seven days to be set by it and notice given to the Purchaser. This applies in particular in case the spoilage of the goods ordered is impending.
4. Quality Details and Property Rights
Samples, illustrations, photos, printed matter etc. enclosed with offers or deliveries as well as information about dimensions, weights, services etc. are approximately valid only and in particular not to be regarded as guaranteed properties or quality guarantees. They are subject to modifications serving the technological progress.
Oskar Nolte GmbH is not obliged to verify any specifications made known to it by the Purchaser.
The documents brought by the Purchaser to the knowledge of Oskar Nolte GmbH shall remain the property of Oskar Nolte GmbH and must not be duplicated nor made accessible in whatever form to third parties without our previous written approval.
5. Passage of Risks and Handover
At the time of delivery the risk passes with the making available of the goods on the premises of Oskar Nolte GmbH and notification of readiness to deliver to the Purchaser, and that also in thoses cases where this is done in reasonable partial deliveries. At the Purchaser’s request the consignment will be insured at his expense by Oskar Nolte GmbH. The transport insurance is at the Purchaser’s request covered by Oskar Nolte GmbH and invoiced at cost price. The Purchaser is obliged to immediately check for transport damages the goods upon delivery by forwarding agent or carrier and notify any such damages verifiably to the transporting person for the assertion of rights. Oskar Nolte GmbH is to be informed about this without delay including a detailedaccount of the facts. Damages which Oskar Nolte Gmbh suffers on account of an improper fulfilment of this obligation on the part of the Purchaser shall have to be made good by the latter.
6. Retention of Title
The deliveries shall be made under retention of title according to § 449 of the German Civil Code with the following amendments: The delivery item remains the property of Oskar Nolte GmbH until all claims against the Purchaser resulting from the business relation including all future ones have been paid in full.
The Purchaser’s acquisition of title to the goods subject to retention of title by processing and/or converting the goods into a new moveable object shall be excluded. Any processing and/or converting by the Purchaser shall be done on behalf of Oskar Nolte GmbH without any liabilities arising out of this to the latter. The title to the processed and/or converted delivery item shall stay with Oskar Nolte GmbH and serve the securing of the claims of Oskar Nolte GmbH in the amount of the value of the goods subject to retention of title.
When combined or mixed by the Purchaser with other moveable objects not owned by Oskar Nolte GmbH Oskar Nolte GmbH shall be entitled to the co-ownership of the new object at the ratio of the value of the goods subject to retention of title to the value of the other processed objects at the time of processing. The Purchaser is obliged to bring to the knowledge of the owners of the other objects that the title to the same is retained by Oskar Nolte GmbH. As for the rest, the same as for the goods subject to retention of title applies to the object resulting from processing within the meaning of these provisions. The Purchaser shall cover the consigments not yet having become the sole property of the Purchaser by his existing insurances as well as those still to be taken out.
The Purchaser shall be authorized to resell the goods subject to retention of title, to process and work them or to combine them with other objects or a landed property within the scope of the ordinary course of business only and with the proviso that he does not Oskar Nolte GMBH
agree a prohibition of assignment with third parties. The Purchaser’s claim arising out of the resale of the goods subject to retention of title, no matter whether unchanged, processed and/or worked and irrespective of the number of buyers is already here and now assigned to Oskar Nolte GmbH in the amount of the invoiced value of the delivery items plus the value added tax applicable at the time.
Oskar Nolte GmbH accepts the assignment.
Oskar Nolte GmbH agrees to an asssigment of claims of the Purchaser arising out of the resale of the objects delivered by Oskar Nolte GmbH against his third-party buyers within the scope of a genuine factoring (assignment to a factor in lieu of performance) in the ordinary course of business, yet with the proviso that the Purchaser assigns his claims for payment against the factor arising out of the sale of the claims against his third-party buyers to Oskar Nolte GmbH and instructs the factor to make payment only to Oskar Nolte GmbH. Oskar Nolte GmbH accepts the assignment. In case the purchase price is lower than the amount claimed by Oskar Nolte GmbH the claim of Oskar Nolte GmbH remains unaffected. The Purchaser has to furnish Oskar Nolte GmbH with all the information which is required for asserting the claims of Oskar Nolte GmbH against the factor. The Purchaser shall not be authorized to dispose of the goods subject to retention of title in any other way. He is obliged to immediately inform Oskar Nolte GmbH of any seizures or other impairments of the delivery items and rights of Oskar Nolte GmbH by third parties.
The Purchaser shall in this particular case bear the necessary costs of intervention by Oskar Nolte GmbH. The Purchaser is despite the assignment authorized – in addition to Oskar Nolte GmbH – to collect receivables. Oskar Nolte GmbH shall not collect receivables and disclose the assignment as long as the Purchaser meets his payment obligations in due form. Whenever so requested by Oskar Nolte GmbH the Purchaser has to make known to it the debtors of the asssigned claims and advise the debtors of the assignment.
The retention of title remains in effect even when individual claims of Oskar Nolte GmbH are included in a current invoice, balance is struck and the same recognized.
With the payment of all claims in full, including costs and interest, which Oskar Nolte GmbH has from the business relation with the Purchaser the title to the goods subject to retention of title of Oskar Nolte GmbH and the assigned claims pass without further ado to the Purchaser. Oskar Nolte GmbH, however, undertakes to release at the Purchaser’s request the securities due to him in accordance with the preceding provisions at its option if their value exceeds the claims to be secured by 10 %. The Purchaser undertakes not to agree a prohibition of assignment with his third-party customers.
7. Warranty
a) In his business dealings the Purchaser is obliged to comply with the legal obligations to examine and complain. If the Purchaser has been certified the extent of diligence to be exercised in this respect is governed also with regard to Oskar Nolte GmbH by the quality assurance provisions of the Purchaser unless general commercial standards do already demand a higher degree of diligence on the part of the Purchaser. For damages arising as a result of a violation of this obligation by the Purchaser and which could have been avoided when the Purchaser had exercised due diligence Oskar Nolte GmbH shall not be liable.
Oskar Nolte GmbH assumes a product defect liability for material defects and defects of title. Prerequisite for the materials defect liability is the exact observance of the storage and processing instructions of Oskar Nolte GmbH. Oskar Nolte GmbH shall not extend any warranty for false processing or wrong storage unless the same is to be attributed to an unclear or incomplete storage or processing instruction. The products are to be used up before the use-by dates specified by Oskar Nolte GmbH. The warranty does neither extend to damages caused by spoilage after the expiration of the indicated use-by dates and chemical and physical influences for whhich Oskar Nolte GmbH is not answerable.
If a defect of a delivery item for which Oskar Nolte GmbH is answerable is found to exist then Oskar Nolte GmbH shall be authorized at its option to first of all provide a supplementary performance (elimination of defect or delivery/manufacture of a defect-free object). As for the rest, the Purchaser’s statutory warranty claims remain unchanged. In case the supplementary performance fails the Purchaser may claim compensation for damages only in the amount of the typically foreseeable damage.
Oskar Nolte GmbH shall be obliged to defray all expenses in connection with the supplementary performance, in particular transport and travelling charges, labour and material costs as far as the same do not rise in a way not foreseeable by Oskar Nolte GmbH on account of the fact that the delivery item was taken by the Purchaser to a location other than the agreed place of delivery. The statute of limitation for claims of the Purchaser for supplementary performance and compension of damages caused by defects of moveable items delivered or manufactured by Oskar Nolte GmbH conforms to the shelf life as indicated by the use-by date Oskar Nolte GMBH
during which the product may be processed if the defect is based on the spoilage of the product. If the defect is not based on the exceedance of the shelf life of the product or if no use-by date is indicated then the limitation period for newly manufactured products shall be limited to one year from handover. The Purchaser’s recourse in accordance with §§ 478, 479 of the German Civil Code shall not be precluded thereby.
The assigment of warranty claims by the Purchaser to third partis shall be excluded.
8. Indemnification in General
If the Purchaser is entitled to indemnifaction according to legal provisions apart from the cases already mentioned then the liability of Oskar Nolte GmbH shall be restricted on its merits to intention and gross negligence of its legal representative or its executive staff. This does, however, not apply to damages resulting from injury to life, body or health based on a negligent violation of duty of Oskar Nolte GmbH or any deliberate or grossly negligent violation of duty of a legal representative or vicarious agent of Oskar Nolte GmbH. This does likewise not apply to damages caused by a culpable violation of essential contractual obligations or by a grossly negligent violation of non-essential contractual obligations of an ordinary vicarious agent of Oskar Nolte GmbH; in such case, however, the extent of liability is limited to the typically foreseeable damage.
9. Court of Jurisdiction and Applicable Law
For all present and future claims arising out of the business relations the court at the registered place of business of Oskar Nolte GmbH shall be the court of exclusive jurisdiction. Oskar Nolte GmbH shall in suits filed have the right to also appeal at its option to the municipal court having jurisdiction over its registered place of business irrespective of the amount in dispute. German law shall apply exclusively to the legal relations of the contracting parties excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
10. Severability Clause
The total or partial ineffectiveness of individual contractual provisions shall not affect the effectiveness of the remaining contract.
Kirchlengern, 01.06.2010