General terms and conditions of business I. General information, offer and conclusion of contract 1. Consumers within the meaning of these general terms and conditions of business are natural persons with whom business relations are established without such persons being deemed to be carrying out a commercial activity or to be working in a selfemployed capacity. Contractors within the meaning of these general terms and conditions of business are natural persons and corporate entities or private incorporated companies with whom business relations are established, and who carry out a commercial activity or work in a self-employed capacity. Purchasers within the meaning of these general terms and conditions of business are both Consumers and Contractors. 2. Offers are always subject to confirmation and exclude any purchasing conditions of purchase applied by the Purchaser. We reserve the right to make reasonable technical or other changes. All offers are based on the general terms and conditions of business of G.F.H. Im- und Export GmbH. 3. Orders must be confirmed in writing to have legal force, with the contents of the letter of confirmation being material to the contractual relationship. Any terms and conditions on the Purchaser s order forms that deviate from these terms and conditions are excluded herewith. Any subsidiary agreements must be made in writing to have legal force and must be confirmed in writing by G.F.H. Im- und Export GmbH. In consideration of possible technical developments, catalogue illustrations are not binding. 4. Offer documents remain the property of the Vendor and must not be passed on to third parties. 5. The contract is concluded with the reservation as to G.F.H. Im- und Export GmbH obtaining the correct and proper supplies, and that if this is not the case, the company shall be entitled not to deliver or to deliver only part of the goods or services. In the event of performance being unavailable or only partially available, the Purchaser shall be informed without delay. Any consideration paid by the Purchaser will be refunded immediately. II. Application of the terms and conditions of sale 1. These general terms and conditions of business are deemed to have been accepted at the latest on receipt of the goods or services (suggestions, technical advice). 2. These general terms and conditions of business also apply to all future orders placed by the Purchaser, irrespective of whether or not the Vendor makes express reference to these terms and conditions in each individual case.
III. Prices, payments, cancellation of the contract by the Vendor and the Purchaser s counter-rights 1. The prices include free delivery and are quoted in without value-added tax. The prices quoted in the Vendor s offers and confirmations of order are always subject to change without notice: the prices applicable on the date of delivery are decisive. 2. The costs for freight, packaging, loading, dispatch and other ancillary costs are included in the price. If the factors determining the price (e.g. the prices for material, operating materials, labour, freight and other regulations imposed by national or supranational law and that are binding on the Vendor), the Vendor shall be entitled to adjust the prices accordingly. 3. Unless otherwise agreed, the invoiced amount is to be paid net and ex paying agent of Vendor within 30 days of receipt of invoice at the latest. This also applies to the invoiced amounts for partial deliveries. 4. If the Vendor accepts payment by order, cheques or bills of exchange, the debt is not redeemed until these have been honoured. Payments by order and bills of exchange are only accepted subject to a separate written agreement. The Purchaser is required to meet any discount charges and any court costs or out-of-court costs associated with redemption or collection of the values of the bills of exchange or cheques. 5. In case of default the interest and commission payments will be calculated in accordance with the bank rates for short-term credits. 6. The Vendor is entitled at any time to demand security for the outstanding amounts. If the Purchaser defaults on a payment or is in breach of the contractual obligations, including these terms and conditions, any other of the Vendor s claims against the Purchaser shall become due for immediate payment. In the event that the Purchaser is in default with the obligations incumbent upon him, the vendor without prejudice to all other rights is entitled to withdraw from the contract without granting a respite. The provisions of articles 355 ff. HGB (German commercial code) also apply. 7. The Purchaser is only entitled to offset any claims if his counterclaims have been upheld by non-appealable declaratory judgment or if they have been recognised by G.F.H. Im- und Export GmbH. The Purchaser is only entitled to exercise his right of retention if his counterclaim is based on the same contractual relationship. IV. Deliveries, delivery date, Purchaser s right to cancel the contract and liability for damages 1. Unless otherwise agreed, all deliveries are made free of charge to the Purchaser s address. All consignments are dispatched at the Purchaser s risk; goods are only insured at the Purchaser s express demand and at the Purchaser s expense.
2. Delivery dates quoted by the Vendor are not binding. If a fixed delivery period has been agreed, it begins on the date that the Vendor sends out the written confirmation of order, provided that all details relating to the order have been clarified. The delivery period is deemed to have been met if the delivery item has been dispatched by the time the delivery period expires or if the Purchaser has been informed of readiness to dispatch, in the event that the Purchaser is required to call for or collect the item. 3. In the event of force majeure, stoppages due to external reasons, shortage of staff, raw materials or fuel, strikes and lock-outs, the Vendor is entitled to postpone or cancel, as a whole or in part, any delivery obligations entered into. In such cases the Purchaser can only claim for damages caused by the delay if the Vendor has been grossly negligent / wilful in his breach of obligations or that a grossly negligent or wilful breach of obligations has occurred on the part of a legal representative or vicarious agent of the Vendor. If a firmly agreed delivery date has been exceeded, the Purchaser is only entitled to cancellation, to the exclusion of the provision of article 323 BGB (German civil code) if he has granted an extension of at least one month and if delivery has not been effected within that additional period. Any further claims on the part of the Purchaser are excluded unless they are based on the Vendor s grossly negligent / wilful breach of obligations or on the grossly negligent or wilful breach of obligations of the legal representative or vicarious agent of the Vendor. This does not apply to liability for damage arising from injury to life, body or health on account of at least a negligent breach of obligations by the Vendor, his legal representative or vicarious agent. 4. Any general changes to the design and version of the relevant delivery item carried out by the Vendor prior to dispatching an order, and which do not in any way restrict the functional value of the item in question, do not constitute grounds for complaint. 5. The Purchaser is always required to take delivery of items made to order. For manufacturing reasons the Vendor is entitled to supply a quantity less or more with regard to these orders (for items made to order). In case of doubt the Vendor may determine what is deemed to be an item made to order. V. Dispatch, passage of risk and liability 1. The risk passes to the Purchaser when the goods are handed over to the Purchaser, carrier, transport agent or other person or body designated to deal with transportation of the goods, but at the latest on leaving the Vendor s site. Dispatch, selection of the means of transport and the route as well as any packaging are effected by the Vendor according to the principles of sound stewardship. The Vendor is only liable if there has been a grossly negligent breach of obligations on the part of the Vendor, his legal representative or vicarious agent.
If dispatch is delayed for reasons for which the Purchaser is responsible, the Vendor shall be entitled to store the delivery item at the Purchaser s expense and risk and as the Vendor deems fit, and to demand immediate payment or, in the event of delivery being made on credit, to count the period of storage as part of the credit period. VI. Securities (reservation of title and anticipatory assignment) 1. The Vendor s deliveries are effected subject to reservation of title in accordance with article 449 BGB and the following supplements. 2. The goods supplied remain the property of the Vendor (reserved goods) until all present and future claims of the Vendor against the Purchaser arising from the business relationship have been met irrespective of the legal basis of those claims; this also applies if payments are made for specifically designated claims. 3. a) Any acquisition of title by the Purchaser to the reserved goods as provided by article 950 BGB in the event of the processing or refashioning of those goods to create a new item or new stock is excluded. Any processing or refashioning of the reserved goods is carried out on behalf of the Vendor as manufacturer within the meaning of article 950 BGB, without constituting any commitment on the part of the Vendor. b) In the event of processing or refashioning of the goods by the Purchaser with other goods not belonging to the Vendor, the Vendor is entitled to co-ownership of the goods produced, in the appropriate ratio of those goods: the invoiced value of reserved goods used for the produced goods as a proportion of the sum of all invoiced values of all goods used in such manufacture. c) If the reserved goods are mixed and compounded with other items and if the Vendor s title to the reserved goods expires as a result (articles 947, 948 BGB), then it is preemptively agreed that the Purchaser s ownership or co-ownership rights, as applicable, to the mixed stock or the standard goods shall be transferred to the Vendor to the extent of the invoiced value of the Vendor s reserved goods and that the Purchaser shall store these goods free of charge on behalf of the Vendor. d) In addition the same In addition the same applies to goods or stocks created as a result of processing, refashioning, compounding or mixing as for the reserved goods; these items too are deemed to be reserved goods within the meaning of these general terms and conditions of business. e) The Purchaser may only dispose of the reserved goods in the ordinary course of business subject to his normal terms and conditions of business and provided that he is not in default. The Purchaser is only entitled and authorised to resell the reserved goods provided that the claims from such a resale are transferred to the Vendor in accordance with sections 4 to 7 below. The Purchaser is not entitled to dispose of the reserved goods in other ways. 4. The Purchaser s claims arising from the resale of the reserved goods are pre-emptively assigned to the Vendor, irrespective of whether or not the reserved goods are being sold without or after processing, refashioning, compounding or mixing and whether or not they are sold to one or more buyers. 5. In the event that the reserved goods are sold by the Purchaser together with other goods not belonging to the Vendor, the assignment of the claim arising from the resale
of the goods applies to the amount of the invoiced value for the reserved goods sold in each case. 6. If the reserved goods are resold after processing, in particular with goods not belonging to the Vendor or after compounding/mixing/refashioning, the assignment only applies to the extent of the Vendors proportion of co-ownership of the resold items or stock. 7. If the reserved goods are used by the Purchaser to perform a contract of manufacture or a contract for works, labour and material, then the claim arising from this is assigned to the Vendor to the same extent as that stipulated in the paragraphs above. 8. The Purchaser is entitled to collect claims arising from the resale of the goods, provided that he meets his pecuniary obligations to the conditional Vendor. On no account is the Purchaser authorised to assign the claim. At the Vendor s request, the Purchaser is required to inform his buyers of the assignment and to provide the information and documents necessary to collect the amounts due. 9. If the value of the securities provided for the Vendor exceeds the Vendor s claim by more than 10 % in total, the Vendor is required at the Purchaser s request to release securities of his choice to the appropriate extent. 10. The Purchaser is required to inform the Vendor without delay of any attachment of a claim or third-party encroachment or other events. 11. The Vendor is entitled at any time to demand the restitution of the items in his ownership or co-ownership if the satisfaction of his claims by the Purchaser seems to be jeopardised or if the Purchaser or his buyers are in breach of the obligations incumbent upon them. No right of retention may be exercised against this claim for restitution. Enforcement of the right of restitution and attachment of an item in the Vendor s ownership or co-ownership by the Vendor does not constitute withdrawal from the contract. VII. Warranty regulations, notice of defects and limitation of liability in time 1. Consumers may choose whether subsequent performance is to be effected by remedying the defect or by replacement. G.F.H. Im- und Export GmbH is entitled to refuse the type of subsequent performance selected if it is only possible with disproportionate costs and if the other type of subsequent performance does not impose considerable disadvantages on the Consumer. In the case of Contractors, G.F.H. Im- und Export GmbH initially offers a warranty for any defects in the goods at his own choice by remedying the defect or replacement. 2. If subsequent performance fails, the Purchaser may essentially demand, at his choice, a reduction in payment (reduction), cancellation of the contract (withdrawal) or compensation in lieu of performance. If the Purchaser opts for compensation in lieu of performance, the limitations of liability as set out in section VIII of these general terms and conditions of business shall apply. However, in the event of minor defects the Purchase is not entitled to withdraw from the contract.
3. Contractors must notify G.F.H. Im- und Export GmbH of any patent defects in writing within one week of receiving the goods, otherwise any raising of warranty claims is excluded. The deadline is deemed to have been observed if the notification of defects has been posted or sent in good time. The full burden of proof for all prerequisites of a claim rests with the Contractor, in particular with regard to the defect itself, for the defect being identified at the time of the passage of risk and for the notice of defect being issued in good time. 4. The limitation of liability in time for the Consumer is two years from delivery of the goods. The limitation of liability in time for Contractors is one year from delivery of the goods. The limitation of liability in time is one year from delivery of the goods for items that have been used. The one-year limitation of liability does not apply if G.F.H. Im- und Export GmbH is guilty of gross negligence and also in the event of physical injuries and injuries to health attributable to G.F.H. Im- und Export GmbH and in the event of the Purchaser s loss of life. The liability of G.F.H. Im- und Export GmbH in accordance with the law on product liability remains unaffected. VIII. Limitations of liability 1. G.F.H. Im- und Export GmbH is not liable for breaches of obligations involving slight negligence. This also applies to breaches of obligations involving slight negligence by the legal representatives of vicarious agents of G.F.H. Im- und Export GmbH. Anything else only applies with regard to a Contractor in the event of G.F.H. Im- und Export GmbH or the company s vicarious agents being in breach of major contractual obligations as a result of slight negligence. 2. The above limitations of liability do not affect the Purchaser s claims arising from product liability. Furthermore, the limitations of liability do not apply in the event of physical injury and injury to health or the Purchaser s loss of life if attributable to G.F.H. Im- und Export GmbH. IX. Production tools and tooling costs The agreed tooling costs are essentially proportionate tooling costs and to be considered independent of the value of the goods. Tooling costs are payable net, with 2/3 due on placement of order and 1/3 due on supply of the reference sample. By paying the proportionate tooling costs, the Purchaser does not acquire any right to the tools themselves; instead, they remain the property of and in the possession of the Vendor. The Vendor undertakes to keep the tools for the Purchaser for one year after the final delivery of any production components made using those tools. At the end of this period the vendor shall be free to dispose of the tools as he deems fit. For tooling orders that are cancelled during the development stage (e.g. on account of difficulties with particular shapes or reshaping) or during the start-up period, the Vendor reserves the right to charge for the costs incurred. If this is the case and if the contract is cancelled before the samples are released, the costs incurred for the whole
initial tooling set will be invoiced; if the contract is cancelled after the samples are released, the costs incurred for the full scope of series production (series tools, special facilities, gauges, templates, production material etc.) will be invoiced in line with planned requirements. The tools that have been set up and invoiced remain with the Vendor for four weeks and will be available for inspection during that period. At the end of this period they will be scrapped or used for a different purpose. To protect the processes applied, there is no obligation to disclose completed sequence of operations drawings and design or construction drawings. X. Special conditions Any samples submitted as well as any parts that have become unusable on account of repair or modification or parts that have been replaced by new ones will be scrapped, provided that their return is not stipulated at the time of order. The Purchaser may only use and resell the delivered items with the trademark and the other marks providing reference to the manufacturer as supplied by the Vendor. The Purchaser is responsible for ensuring the fairness of his advertising. The Vendor is entitled to determine the type of advertising used. XI. Applicable law, safeguarding clause, place of performance and legal venue, inconsistency of the terms and conditions of business in different languages German law applies exclusively to all agreements and legal actions, both as regards the Vendor and the Purchaser. In the event of individual provisions of the contract being invalid, the remaining provisions shall remain binding. If the legality of one of the terms and conditions of sale should be cast into doubt in consequence of a relevant decision by the federal court of justice, the provision thus affected is to be interpreted within the terms of reference of the federal court of justice and to be deemed to be agreed as such. The place of performance for delivery and payments is the head office of G.F.H. Imund Export GmbH, Hamburg. The exclusive legal venue, including for proceedings relating to bills of exchange and cheques, is Hamburg, or any other court of the Vendor s choice. In the event of any inconsistency between the German and English versions of the terms and conditions of business, the parties are agreed that the German version of the terms and conditions of business shall prevail.