Terms and Conditions of Sale and Delivery
Formation of Contract
Any of Isogran GmbH's deliveries and service shall be governed exclusively by the terms and conditions set forth herein, even if not explicitly referred to by us for our future deliveries and services or if the customer uses other terms and conditions whether printed or otherwise. Any such other conditions do not apply unless confirmed by us in writing.
1. Reservation of Title
a) The goods and any related documents shall remain our sole property until the com plete satisfaction and discharge of any and all of our present and future claims and receivables from our business relationship with the customer.
b) The customer undertakes to mark and store the goods owned by us separately (goods subject to reservation).
c) We shall become owners of the new products in case the customer processes, converts or transforms the goods subject to our reservation or permits any of the foregoing, without incurring thereby any liability or any obligation. In case the customer combines, mixes, blends, commingles or processes the goods subject to reservation with other goods owned by third parties or transforms them with other goods owned by third parties we shall acquire and be entitled to co-ownership of the new goods produced in the proportion to the contributing values of the goods subject to reservation and the value of the other goods previously owned by third parties. To that extent the new goods are considered goods subject to reservation for the purposes of these terms and conditions.
d) A sale of the goods subject to reservation is only permitted in the ordinary course of business. Any other dispositions, in particular pledging or chattel mortgaging of the goods subject to reservation, are not permitted, and the customer shall not allow any lien or encumbrances. Any claims or receivables arising to the customer in connection with the goods subject to reservation due to resale or other disposal or for other reasons are hereby fully assigned to us in advance by the customer. In the case of co-ownership, the assignment does only apply to the share of the Claim or receivable corresponding to our co-ownership.
An onward sale or other disposal is only permitted if the assignment to us and our Other rights are maintained and not negatively affected thereby.
e) The customer is only authorized to collect the claims and receivables assigned to us in the ordinary of business and subject to revocation by us at any time. On our request, he shall inform his debtors of the assignment in the proper form. In addition, the customer grants us an irrevocable power of attorney so that we are Likewise entitled and authorized to do so at any time.
f) The customers authorization to dispose of, to process, to transform, to combine, to mix, and to blend the goods subject to reservation, and to collect the claims and receivables assigned, shall terminate ipso iure upon his non-compliance with the terms of payment, in the case of unauthorized disposals or of any protest in connection with cheques, bills or letters of exchange or default on any other payment obligation or if he commits an act of bankruptcy or if insolvency proceedings are instituted against the customer or if a substantial deterioration of the customers financial situation becomes apparent or known to us. In such cases we shall be entitled to take possession of the goods subject to reservation immediately, for this purpose to enter the customers premises and to obtain all infor- mation reasonably required by us on the goods subject to reservation and, if applicable, on claims or receivables which have arisen or may result from their resale or other disposition as well as to inspect the customers records, if this serves to secure our rights. Acceptance of the goods, receivables or respective claims involves a rescission of the contract only if this explicitly stated by us.
g) Should the value of the collateral or security given to us or retained by us hereunder exceed the value of our claims, rights and receivables as a whole by more than 20% we shall release upon customers request an appropriate amount of any such surplus security or collateral.
2. Prices, Terms of Payment
a) Any value added tax applicable at the date of delivery has to be added to our prices.
b) Should any increases of import duties, taxes, levies, freights, etc. occur from the conclusion of the date of delivery we reserve the right to adjust our prices accordingly.
c) The customer shall not be entitled to retain, withhold or offset payments due to any counter-claims or other purported rights including, but not limited to claims arising from product guarantees, unless and to the extent any such counter-claims or rights are acknowledged by us or established by non-appealable court decision.
d) In case the customer does not pay in accordance with the agreements we shall be entitled, without notice or formality, to charge interest of 4% above the discount rate of the German Federal Bank from due date.
e) If circumstances become known to us after conclusion of contract giving rise to serious doubts regarding the customers solvency respectively his reputation of being worth for credit, we are entitled to declare due all our claims from the existing business relationship disregarding all periods agreed for payment. In this case we are furthermore entitled to refuse any further supply of the customer with our goods, even under contractual obligation, unless he prepays the full price of such deliveries or the customer supplies us with securities or bails to our satisfaction. In case the customer does not meet our demands for prepayment or securities within an adequate period we may at our own discretion claim for damages or cancel the contract with regard to any future deliveries.
3. Delivery and Delaya) Delivery periods or delivery dates shall be deemed to be approximate only.
b) We shall be entitled to defer and/or to cancel our delivery commitment in case of force majeure, e.g.
- strike, lockout,
- other interruptions of the fabrication of any kind or any difficulties occurring in the provision of fabricated materials and operating supplies as far as those events are incurring after conclusion of the contract with the customer, furthermore any difficulties in the shipment or transportation of the goods,
- unless those events are caused intentionally or by gross negligence by us. our corporate bodies, directors or officers entrusted with special tasks.
- non-delivery or incorrect delivery by our suppliers to ourselves,
- or any other events beyond our reasonable control.
In case that such event of force majeure continues for a longer period of time with- out us exercising our right to cancel our delivery commitment the customer upon the elapse of a reasonable period of time shall have the remedy at the exclusion of any other or further rights, claims or remedies to cancel the quantities affected.
c) Even if a fixed delivery period or date have been agreed upon the customer shall afford us a reasonable period of grace for delivery. After the elapse of such period the customer shall be entitled to terminate the contract with respect to any overdue quantity which had not been declared ready for shipment. Any other or further rights or remedies in connection with our delay are excluded unless in the case of an act of intent or an act of gross negligence by us, our cor- porate bodies, directors or officers entrusted with special tasks. At any rate claims for damages shall be limited to the foreseeable damage. Damages exceeding the double value of the affected quantity not delivered or not delivered in time are excluded. In case the customer believes higher damages exceeding the limit mentioned above may result a compensation for such higher damage shall require an express arrangement.
4. Passing of Risk
Unless agreed upon to the contrary, deliveries shall be effected ex warehouse. In the event that special conditions or procedures as to acceptance of delivery are agreed upon, the customer shall carry out the same at the place of delivery at his own expense. In the case the customer does not notify seller of any claims when accepting the goods or if the customer fails to accept the goods, the goods shall be considered to be delivered according to the contract at the time risk passes. Any risk shall pass to the customer upon the notice of readiness for shipment, and at the latest at the time the goods leave the place of delivery. This shall also apply in case we arrange the transportation of the goods or pay the freight.
5. Part ShipmentsWe shall be entitled to carry out part shipments or part performance, respectively. The loss, delay, or defectiveness, if any, relating to part shipments shall not entitle the Customer to any rights with regard to any remaining or outstanding shipments.
6. Measures, Weights and Quantities of DeliveryMeasures and weights mentioned in our offers and in our confirmations of sales are approximate only. The measures, weights and quantities indicated in our delivery notes shall govern for invoicing and settlement. Claims regarding measure, weight or quantity of delivery are to be made in writing within 14 days after arrival of the goods at the place of destination at the latest.
7. Remedies for Defects and Product Representation and Warranties
a) The customer shall examine the goods and lodge claims, if any, or assert the lack or breach of warranties or product guaranties in writing immediately, but at the latest 14 days after arrival of the goods at the place of destination. Claims relating to hidden defects are to be lodged in writing immediately after their discovery. The same applies to the lack or breach of warranties or product guaran- ties that could not have been discovered by proper inspection. In case of delivery of wrong goods the customer is also obliged to lodge a com- Plaint in the manner as mentioned above.
b) In the case there was no opportunity offered to us to check the defect complained about or the alleged lack of warranties or product guaranties, or if the customer makes alterations to the goods complained about in the meantime without our approval, he shall lose his claims based on warranties or product guaranties.
c) In the case of proved defects we shall at our option remedy the defects or deliver a replacement free of charge against return of the goods complained about. Further claims based on warranties or product guaranties are excluded unless we fail to remedy the defects or, without justification, refuse the remedy or to replace the goods complained about. In such cases the customer shall be entitled to fix a reasonable period of time, and after its unsuccessful expiry the customer is entitled at his option either to demand for exchange of the defective goods against repayment of the sales price already paid to us or to ask for a reasonable reduction of the sales price for the goods affected.
d) In cases of lack of product representations and guaranties the following shall apply:
aa) Product representations and guaranties shall be considered only in case we have declared such representation or guarantee explicitly and in writing.
bb) We shall be entitled to reject any further claims of the customer in case we remedy the defect free of charge or replace the goods affected at our expense as long as such remedy or replacements is in the customers interest and any damage arising to the customer out of such goods prior to our remedy or replacement is paid by us.
cc) In the event that such possibility for remedying replacement does no longer exist, the customer shall be entitled to the legal rights concerning warranties. Claims for damages, if any rate being limited to the damage foreseeable at the time of delivery. Damages exceeding the equivalence of four times the contractual value of the quantity affected are excluded. In the case the customer believes higher damages exceeding the limit mentioned above may result, any compensation for such higher damage shall require an express arrangement.
e) With the elapse of six months after the passing of risk for the goods affected any claims relating to product representation and warranty shall be time-barred.
8. Limitation of Further Liabilities
a) Except for the regulations contained in sections 3 and 7 (delay, warranty), other claims for damages of any kind, e. g. for “culpa in contrahendo”, ” positive Forde- rungsverletzung”, and tort, in particular for damages not occurred at or with the goods delivered are excluded unless it is a case of intend or an act of gross negli- gence by us, our corporate bodies, directors or officers entrusted with special tasks.
b) At any rate, claims for damages shall be limited to the foreseeable damage. Damages exceeding the double of their value of the quantity affected by such default shall be excluded. In case the customer believes higher damages exceeding the limit mentioned above may result any compensation for such higher damage shall require an express arrangement.
c) The regulations contained under section 8 a) and b) shall also apply in favour for our employees.