02/02/12

General Terms and Conditions of Becker Carbon GmbH towards businesses

These General Terms and Conditions are a translation of the German version and should be read together with it. The English version is only for information. In case of deviations between the German and the English version only the German version applies.

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§ 1 Application

(1) All deliveries, performances and offers of the Seller exclusively take place on the basis of these General Terms and Conditions. They are content of all agreements of the Seller with its contract partners (subsequently referred to as the “Customer”) concerning the offered deliveries and performances. They also apply for all deliveries, performances and offers towards the Customer in the future, even if this should not be agreed separately.

(2) General Terms and Conditions of the Customer or of Third Parties do not apply, even if the Seller does not contradict them separately. Even if the Seller regards to a writing containing General Terms and Conditions of the Customer or of a Third Party or referring to those, this will not constitute a consent with the inclusion of those General Terms and Conditions.

§ 2 Offers and Conclusion of the Agreement

(1) All offers of the Seller are without engagement and not binding, unless they are explicitly marked as binding or unless they contain a determined period for the acceptance. Purchase orders may be accepted by the Seller within fourteen days after receipt.

(2) The legal relationship between the Seller and the Customer is exclusively governed by the purchase agreement including these General Terms and Conditions. It entirely contains all agreed arrangements of the Parties concerning the object of agreement. Oral confirmations of the Seller before the conclusion of the purchase agreement are legally not binding and oral arrangements of the Parties are replaced by the agreement, unless they are explicitly deemed to remain in force.

(3) Amendments and variances of the concluded agreements including these General Terms and Conditions require the written form. With the exception of directors and authorized officers vested with a registered general power of representation the employees of the Seller are not authorized to conclude dissenting oral arrangements. A telefax complies with the written form, while other forms of transfer by telecommunication, especially by email, are not sufficient.

(4) Statements of the Seller concerning the object of delivery or performance (e.g. weights, measures, utility values, resilience, tolerances, and technical data) and our illustrations of them (e.g. drawings and depictions) are no guarantied quality features but descriptions and identifications of the delivery or performance. Variances, which are usual in the course of trade and variances, which are required due to law or which are technical improvements as well as replacements of parts by other equivalent parts are permitted, as far as the usability for the contractual purpose is not affected.

(5) The Seller reserves the property or the copyright of all offers and estimations of costs as well as of all drawings, calculations, prospects, catalogues, models, tools and other documents or auxiliary devices. The Customer is not allowed to make these assets available to Third Parties without the explicit consent of the Seller, neither as such nor contentual, the Customer is not allowed to make them public, to use them by himself or through Third Parties or to copy them. On demand of the Seller, he has to give these assets back and he has to destroy eventually made copies, if they are not needed any more in the ordinary course of business or if the negotiations do not result in the conclusion of an agreement.

§ 3 Prices and Payment

(1) The prices apply for the scope of delivery and performance mentioned in the acceptance of order. Additional or special performances will be invoiced separately. The prices are to be understood in EURO, ex works plus packing, plus value added tax, plus custom fees in the case of an export delivery and plus other public fees.

(2) As far as the agreed prices are based on the list prices of the Seller and if delivery shall occur more than four months after the conclusion of the agreement, the valid list prices of the Seller at the time of delivery are deemed to be agreed (each less an agreed percentual or fixed discount).

(3) Invoice amounts have to be paid within fourteen days without any reduction, unless otherwise agreed by the Parties in writing. Concerning the date of payment, the receipt of the Seller is the relevant point in time. Cheques are deemed as payments only after their encashment. If the Customer does not pay on the due date, the outstanding amounts shall be interest-bearing with 5 % per year. After default, the outstanding amounts shall be interest-bearing with 10 % per year; the assertion of higher interests and further claims for damages remain unaffected.

(4) The offsetting with counter claims of the Costumer or the retention of payments due to such claims is only permitted, if the counter claims are undisputed or determined to be legally binding by a court.

(5) The Seller is entitled, to carry out deliveries or performances only on prepayment or by way of security, if subsequent to the agreement it becomes aware of facts, which are qualified to substantially diminish the creditworthiness of the Customer and which jeopardize the payment of the open claims of the Seller by the Customer resulting from the respective contractual relationship (including other single orders under the same basic agreement).

§ 4 Delivery and Time of Delivery

(1) Deliveries take place ex works.

(2) Deadlines or target dates prospected by the Seller are only applied approximately, unless a fixed deadline or a fixed date has been explicitly assured or explicitly agreed. If a dispatching has been agreed, deadlines and target dates for delivery are related to the handover towards the shipping agent, carrier or towards a Third Party, mandated with the transport otherwise.

(3) Notwithstanding its rights resulting from a default of the customer, the Seller may demand a prolongation of the deadlines for delivery or performance for such a period, in which the Customer does not comply with his contractual duties towards the Seller.

(4) The Seller is not liable for the impossibility or the delay of delivery, as far as they are caused by force majeure or other events, which were not foreseeable at the time of the conclusion of the agreement (e.g. industrial disruption of any kind, difficulties concerning the procurement of resources or energy, transportation delay, strikes, lawful lockouts, lack of labor force, energy or resources, difficulties with necessary public permissions, administrative measures or missing, incorrect or overdue deliveries by suppliers), for which the Seller is not responsible. If such events substantially complicate the delivery or performance for the Seller or make them impossible, and if the obstruction is not only of transitional nature, the Seller is entitled to cancel the agreement. In the case of obstructions, which are of transitional kind, the deadlines for delivery or performance are prolonged respectively or the target dates are postponed by the period of the obstruction plus an adequate initial period of time. As far as the acceptance of the delivery or performance cannot be expected from the Costumer, he is entitled to cancel the agreement immediately by written declaration towards the Seller.

(5) The Seller is only entitled to part deliveries, if

  • the part delivery is usable for the Customer for the contractual purpose,
  • the delivery of the outstanding goods is ensured, and
  • this does not result in substantial additional efforts or costs for the Costumer (unless the Seller agrees to take over these costs).

(6) If the Seller is in default concerning a delivery or performance or if a delivery or performance becomes impossible for it for any reason, the liability of the Seller for damages is limited due to § 8 of these General Terms and Conditions.

§ 5 Place of Delivery, Dispatch, Packing, Transfer of Risk, Acceptance

(1) Place of delivery for all duties under the contractual relationship is the seat of the Seller, unless agreed otherwise. If the Seller owes the installation, the place of delivery is the place, where the installation has to happen.

(2) The kind of dispatch and the packing are in the duly discretion of the Seller.

(3) The risk is transferred to the Customer at least since the handover of the delivery object (at what the beginning of the loading process is the relevant point in time) towards the shipping agent, carrier or towards a Third Party, mandated with the transport otherwise. This also applies, if part deliveries take place or if the Seller has committed itself to further performances (e.g. dispatch or installation). If the dispatch or the handover is delayed because of a circumstance, which lies in the sphere of the Customer, the risk is transferred on the day, on which the delivery object is ready for dispatch and the Seller has announced this to the Customer.

(4) Storage costs after the transfer of risk are born by the Customer. In case of storage by the Seller, storage costs amount to 0.25 % of the invoiced amount of the stored delivery objects for every expired week. The assertion and the proof of higher or lower storage costs remain unaffected.

(5) The dispatch will only be insured by the Seller on demand of the Customer and at his charge against theft, damages due to breakage, transport, fire and water or against other insurable risks.

(6) As far as an acceptance has to take place, the purchase object is deemed to be accepted, if

  • the delivery and, if an installation is owed, the installation are completed,
  • the Seller has announced this to the Customer with reference to the notional acceptance under this § 5 (6) and has requested the acceptance from him,
  • the delivery or installation has taken place more than 12 working days ago or if the Customer has started to use the purchase object (e.g. put the delivered equipment into operation) and in this case the delivery or installation has taken place more than 6 working days ago, and
  • the Customer has omitted the acceptance within this period of time for a different reason than a defect, which has been indicated to the Seller and which makes the use of the purchase object impossible or affects it substantially.


§ 6 Warranty, Defects of the Purchase Object

(1) The period of warranty is one year from the time of delivery, or if an acceptance is necessary, from the time of the acceptance.

(2) The delivered objects have to be examined immediately after the delivery towards the Customer or towards the Third Party nominated by him. They are deemed to be approved, if the Seller does not receipt a written notice within seven working days after delivery of the delivery object concerning obvious defects or other defects, which could have been recognized by an immediate, diligent examination, otherwise within seven working days after the recognition of the defect or after an earlier point in time, in which the defect was recognizable for the Customer in the course of ordinary usage without a particular examination. On demand of the Seller, the faulty delivery objects have to be sent back to the Seller. In case of a justified notice of defect, the Seller will reimburse the costs of the kind of transport with the lowest price; this does not apply, if the costs are increased because the delivery object is located in a different place than the place of its intended usage.

(3) In case of a material defect of the delivered object, the Seller is at first within its discretion that has to be executed within an adequate period of time, obliged and entitled to subsequent improvement or replacement delivery. In case of failure, i.e. impossibility, unacceptability, denial or undue delay of subsequent improvement or replacement delivery, the Customer is entitled to cancel the agreement or adequately diminish the purchase price.

(4) In case of a defect due to the fault of the Seller, the Customer may demand damages under the premises set out in § 8.

(5) In the case of defects of components of other fabricators, which cannot be remedied by the Seller due to legal licensing reasons or due to actual reasons, the Seller will in its own discretion raise its warranty claims against the fabricator and the suppliers for the account of the Customer or it will assign the claim towards the Customer. Concerning such defects, Warranty claims against the Seller only exist under the other premises being subject to these General Terms and Conditions, if the judicial enforcement of the aforementioned claims against the fabricator and suppliers has failed or, if it has no prospect of success, e.g. due to an insolvency. During the period of the lawsuit, the statute of limitations for the relevant warranty claims of the Customer against the Seller is suspended. 

(6) Warranty does not apply, if the Customer changes the delivery object or has it changed by Third Parties and the remedy of the defects hereby becomes impossible or unsuitably more difficult. In any case the Customer has to bear the additional costs of the remedy of defects, which accrued due to the change.

(7) An individually agreed delivery of used objects takes place under exclusion of any Warranty concerning defects.

§ 7 Industrial property rights

(1) Subject to this § 7, the Seller is responsible for the delivery object being free from industrial property rights or copyrights of Third Parties. Every contract party will notify the other contract party immediately in writing, if claims due to a violation of such rights are raised against it.

(2) If the delivery object violates an industrial property right or a copyright of a Third Party, the Seller will in its own discretion modify or exchange the delivery object, so that no rights of Third Parties are violated, while the delivery object still fulfills the agreed functions, or it will procure the right of use to the Customer by the conclusion of a license agreement. If the Seller does not succeed in this within an adequate period of time, the Customer is entitled to cancel the agreement or to diminish the purchase price adequately. Eventual claims for damages are limited due to § 8 of these General Terms and Conditions.

(3) In the case of violation of law caused by products of other fabricators, delivered by the Seller, the Seller will in its own discretion raise its warranty claims against the fabricator and its suppliers for the account of the Customer or it will assign the claim towards the Customer. Claims against the Seller being subject to this § 7, only exist, if the judicial enforcement of the aforementioned claims against the fabricator and suppliers has failed or, if it has no prospect of success, e.g. due to an insolvency.

§ 8 Liability for Damages due to Fault

(1) The liability of the Seller for damages for any reason especially due to impossibility, delay, deficient or false delivery, violations of the agreement, violations of duties during the negotiations and due to tort is limited to this § 8, as far as a fault is required.

(2) The Seller is not liable for ordinary negligence of its organs, legal representatives, employees or other performing agents as far as there is no violation of an essential obligation of the agreement. Essential obligations are the timely delivery and installation of the delivery object being free of fundamental defects as well as obligations for advice, protection and custody, which shall enable the Customer the contractual use of the delivery object or which purpose the protection of life and limb of the personal of the Customer or the protection of his property against substantial damages.

(3) As far as the Seller is liable for damages on its merits due to § 8 (2), this liability is limited to damages, which have been foreseen by the Seller at the time of the conclusion of the agreement as a possible consequence or which it would have been foreseen under application of care and attention. Indirect or secondary damages due to defects of the delivery object are only able to indemnify if such damages are typically to be expected in the case of purposed use of the delivery object.

(4) The liability of the Seller for damages due to ordinary negligence concerning material defects and therefrom resulting further financial losses is limited to an amount of EUR 10.000.000,00 for each damage event (corresponding to the current insured sum of its product liability insurance), even in the case of a violation of essential obligations of the agreement.

(5) The foregoing exclusions and limitations of liability to the same extent apply to the benefit of the primary agents, legal representatives, employees and other performing agents of the Seller.

(6) As far as the Seller provides technical information or if it gives advice and this information or the advice is not part of the agreed, owed scope of services of the agreement, this happens free of charge and under exclusion of any liability.

(7) The limitations of § 8 do not apply for the liability of the Seller due to a willful act, a guaranteed quality feature, a violation of life and limb or of health or due to the German product liability code (ProdHaftG).

§ 9 Reservation of Ownership

(1) The subsequently agreed reservation of ownership serves the security of all current and future claims of the Seller against the Customer resulting from the supply relationship between the Parties (including current account balance claims due to an open account limited to this supply relationship).

(2) The goods, which have been delivered by the Seller, remain property of the Seller until the entire payment of all secured claims. These goods as well as those goods, substituting them due to this clause being subject to the reservation of ownership will subsequently be referred to as Reserved Goods.

(3) The Customer stores these Reserved Goods for the Seller free of charge.

(4) The Customer is entitled to process and to sell the Reserved Goods within the course of ordinary business until the occurrence of the Realization Case (paragraph 9). Pledges and assignments as security are not permitted.

(5) If the Reserved Goods are processed by the Customer, it is agreed, that the processing takes place in the name and on account of the Seller and that the Seller directly acquires the ownership or – if the processing takes place on the basis of raw materials of different owners or if the value of the processed object is higher than the value of the Reserved Goods – the joint ownership (part ownership) of the newly created object in the proportion of the value of the Reserved Goods towards the value of the newly created object. In the case, that such an acquisition of ownership by the Seller should not occur, the Customer already now transfers his future ownership or his joint ownership in the abovementioned proportion in the newly created object as a security towards the Seller. If the Reserved Goods are connected or inseparably blended with other objects resulting in one consistent object and if one of the other objects is to be regarded as the main object, the Seller transfers the partial joint ownership in the consistent object in the proportion mentioned in sentence 1 towards the Customer, as far as the main object belongs to the Seller.

(6) In the case of a resale of the Reserved Goods, the Customer already now assigns as security the therefrom arising claim against the purchaser towards the Seller – in the case of joint ownership of the Seller in the Reserved Goods in the proportion of the property part. The same applies for other claims substituting the Reserved Goods or arising in connection with the Reserved Goods differently, e.g. insurance claims or claims due to tort in case of loss or destruction. The Seller revocably authorizes the Customer, to collect the assigned claims in his own name. The Seller shall only revoke this authorization of collection in the Realization Case.

(7) If Third Parties assert claims concerning the Reserved Goods, especially by garnishment, the Customer will immediately make them aware of the ownership of the Seller and inform the Seller about this, in order to enable the Seller to enforce its property rights. If the Third Party is not able to reimburse the Seller the judicial and extra judicial costs arising in this connection, the Customer is liable for these costs towards the Seller.

(8) The Seller will release the Reserved Goods and the substituting objects and claims on demand of the Customer in its own discretion, as far as their value exceeds the amount of the ensured claims by more than 50 %.

(9) If the Seller cancels the agreement due to a breach of contract by the Customer (Realization Case), especially in case of delay in payment, it is entitled to claim the delivery of the Reserved Goods.

§ 10 Final Provisions

(1) If the Customer is a merchant, a corporate body under public law or a special fund under public law, the place of jurisdiction for all eventual disputes arising from the business relationship between the Seller and the Customer shall be the seat of the Seller or the seat of the Customer according to the choice of the Seller. For lawsuits against the Seller, the exclusive place of jurisdiction shall be the seat of the Seller. Obligatory legal provisions concerning places of jurisdiction shall not be affected by this clause.

(2) The relationship between the Seller and the Customer is governed by the laws of the Federal Republic of Germany. The convention of the United Nations concerning contracts about international sale of goods dated 11. April 1980 (CISG) does not apply.

(3) As far as the provisions of the agreement or of these General Terms and Conditions are or become invalid, void or unenforceable, the validity of the other provisions remains unaffected. The Parties commit themselves, to replace the invalid, void or unenforceable provision by such a valid and enforceable provision, which comes closest to the economic purpose intended by the invalid, void or unenforceable provision. This also applies in case of a gap.

Notice:
The Customer acknowledges, that the Seller saves data resulting from the contractual relationship due to § 28 of the German Federal Data Protection Act for the purpose of processing them and that the Seller reserves the right to transfer these data towards Third Parties (e.g. insurance), as far as it is necessary for the fulfillment of the agreement.

Becker Carbon GmbH
Fritz-Schäffer-Straße 50
D-94560 Offenberg/Neuhausen

phone: +49.991.99 89 32-0
fax: +49.991.99 89 32-13

info@becker-carbon.de