Standard Conditions of Sale, Delivery and Assembly
for
Schunk Kohlenstofftechnik GmbH
Schunk Ingenieurkeramik GmbH
Schunk Modultechnik GmbH, Ganderkesee
Schunk Bahn- und Industrietechnik GmbH, Wettenberg
Status: 2009 April 2nd
The following terms and conditions shall apply only to persons, who when entering
this agreement, are acting within the scope of their commercial activities, either as
commissioned agents of their respective enterprises or as self employed
businesspeople, as well as to legal persons under public law and to public and/or
government-owned enterprises.
1. Applicable Conditions
All of our deliveries and performances are subject to theses conditions as well as to
any other contractual agreements which may have been entered into. The
purchasing conditions of the buyer shall not be included in this agreement and the
acceptance of orders shall not imply such inclusion.
2. Offers
Our offers are subject to change without notice, unless explicitly stated otherwise in writing.
3. Subject Matter and Scope of Agreement
3.1 Our written order confirmation shall be decisive for determining the extent of
our delivery obligations, or, in the event of a firm offer made by us, if a timely order
confirmation has not been made, then shall such firm offer upon binding acceptance
be decisive for the determination of the extent of our delivery obligations. Ancillary
agreements and alterations must be made in writing.
3.2 Our product information and descriptive material such as illustrations,
drawings sketches and measurement descriptions shall not become subject matter of
the agreement and are only approximately decisive, unless we have explicitly
designated them as binding.
If changes are made to products after submission of an offer as a result of continual
technical development, then we shall have the right to deliver the technically modified
versions of such products. In doing so, we are entitled to deviations from illustrations,
drawings, descriptions color, and measurement, weight, quality and other
specifications, as long as these are reasonably compatible with the mutual interests
of the buyer. It is the obligation of the buyer to inform us when submitting an order, if
we may by no means deviate from given specifications.
3.3 Our specifications shall only apply if we expressly designate them as such in
the order confirmation.
3.4 Any authorization/approval which may be necessary for the export and the use
of the products to be delivered is to be obtained by the buyer at his own expense. If
we assist the buyer in any such endeavors then, he is to reimburse us for any
expenses which we incur.
3.5 The buyer shall provide at his expense any media which may be necessary for
the assembly and use of the products we are to deliver, in a sufficient quantity and in
a non-corrosive form.
3.6 In the event that software is included in our delivery, we shall grant the user a
non-exclusive right to use such software, including the corresponding documentation.
The software is furnished for the purpose of being used on the on the delivery item
for which it was intended. Use of the software on more than one system is not
permitted.
The buyer is only authorized to copy, revise, translate or convert the software from
object code to source code to the extent permitted by law (see §§ 96 a ff German
Copyright Act). The buyer undertakes not to remove or alter any printed
manufacturer specifications - in particular copyright information - without previously
having our express consent. The buyer is authorized to make two back-up copies.
All other rights to the software and the documentation shall remain in our possession
or in the possession of the software supplier. Sublicensing is not permitted.
4. Limiting Condition of Export Authorization / Check of Sanction Register
In the event that we are to make a delivery abroad, then the offer and order
confirmation can only be made subject to the condition precedent, that any export
authorization which may be required is granted by the appropriate authorities.
Deliveries and Services to Customers, who are named on national or international
Sanction Registers, will not be executed in general.
5. Copyright, Confidentiality
We reserve and retain all copyright and property rights to samples, cost estimates,
drawings, models, templates and similar information, whether of physical or
nonphysical nature including information in electrical form, and access to such
information is not to be granted to third parties. Copies or other duplicates may only
be made for the agreed purpose. Neither originals nor duplicates may be handed
over to third parties or made available in any other way.
We undertake to grant access to third parties to material which the buyer has
designated as confidential, only with the buyer's consent.
6. Prices
Unless otherwise stated, prices shall be understood to be ex-works, inclusive of
loading but exclusive of packaging and other costs. If applicable, sales tax/value
added tax is to be added to our prices at the respective legally prescribed rate.
For performance which is to be completed later than four months after signing the
contract, we shall be entitled to charge an appropriate overhead rate on our invoices
for wage or material price increases which may have occurred.
7. Payment, Late Payment, Withholding of Payment, Withdrawal
7.1 Unless otherwise specified, net payment is to be made without deduction and
free of charge at our stated payment office, immediately upon receipt of invoice.
7.2 We are in no way obligated to accept bills of exchange. Any bill charges which
may arise are to be born by the buyer. If a bill is not honored, then all of our accounts
receivable with the buyer shall immediately become due.
7.3 In the event of late payment, we shall be entitled to charge penalty interest at
the level of 8 percentage points above the respective base interest rate. This shall by
no means relieve the buyer of the burden of providing evidence of extraordinary
financial distress.
7.4 We shall be entitled to charge EUR 10.- for every payment reminder we write.
7.5 The buyer is not entitled to withhold payment or to offset such payment due to
counterclaims which are disputed by us.
If, after entering the agreement, it becomes evident that our right to receive payment
is in jeopardy as a result of deficient solvency on the part of the buyer, e.g. if our
credit sale insurance refuses to insure the buyer's accounts receivable in the full
amount, then we shall have the right to refuse performance and to set an appropriate
deadline for the buyer, within which he shall either make contemporaneous payment
for any deliveries made or provide suitable collateral security.
In the event that the buyer refuses to meet such demands or that the aforesaid
deadline expires without success, then we shall be entitled to withdraw from the
agreement and shall have a right to compensation for any damages we may have
incurred.
8. Delivery Date, Delivery Deadline, Delay in Delivery.
8.1 The delivery deadline or delivery date shall only be binding if they are
designated as such in our order confirmation.
8.2 The delivery time allowed shall begin expiring no earlier than the submission of
the order confirmation, not, however, prior to the receipt of any drawings which
required the approval of the buyer, releases for purchasing and procurement
documents and paperwork, approval and any necessary information for the carrying
out of the production order, the clarification of any commercial and technical
questions between the parties to the agreement as well as the fulfillment of any and
all obligations by the buyer, e.g. the performance of a specified down-payment or the
making of payments due from earlier deliveries.
8.3 In the event that noncompliance with the specified delivery deadline is caused
by acts of God, labor disputes or other events which we are not able to influence,
then the delivery deadline shall be extended by an appropriate and reasonable
amount. This shall also apply when such circumstances occur at our subcontractors.
We shall inform the buyer at once as to the beginning and end of such
circumstances.
We shall not be held responsible for the occurrence or for the consequences of such
circumstances as described above, even if these occur during an existing delivery
delay.
8.4 The delivery deadline or delivery date shall be deemed to have been met, if by
the expiration of such deadline, the delivery goods have left our plant or have been
designated as ready for shipping. To the extent that an acceptance of the goods is to
take place, then - except in cases of justified rejection of the goods - such
acceptance date shall be deemed to be definitive or as the case may warrant, the
notification of willingness to accept the delivery goods.
8.5 Our obligation to comply with the delivery deadline is subject to punctual and
correct delivery by our own suppliers.
8.6 The buyer shall be entitled to immediately withdraw from the agreement if
performance in its entirety becomes finally and conclusively impossible for us, prior to
passage of risk. In addition, the buyer shall also be entitled to withdraw from the
agreement if, in the course of filling an order, the fulfillment of a part of a delivery
becomes impossible and the buyer has a vital interest in the refusal of the partial
delivery. If this is not the case, then the buyer shall be obliged to pay the percentage
of the agreement price which corresponds to the partial delivery. The same shall
apply in cases of our subjective inability to perform. Otherwise point 12.2 shall apply.
8.7 In the event that we are delayed with our delivery and such delay causes
damage to the buyer, then the buyer shall be entitled to a lump sum compensation
for such damages suffered due to the aforesaid delay in delivery. The lump sum
payment shall amount to 0.5% of the value of the part of the delivery which could not
be used by the buyer on time or as stipulated by the agreement as a result of the
delivery delay, per full week of delay; such payment shall however, not exceed, in
total, 5% of the value of the delayed part of the delivery.
If we are delayed with our delivery - subject to legal exceptions - and the buyer
grants us a reasonable extension of our delivery deadline, and we fail to comply with
this deadline, then the buyer is entitled to withdraw from the agreement within the
confines of applicable legal regulations.
Other rights which arise due to delay in delivery shall be determined exclusively by
point 12.2 of these standard conditions.
8.8 If shipping or acceptance of the delivery goods is delayed for reasons for which
the buyer is responsible, then we shall be authorized, beginning one month after
notification that the goods are ready for shipment or notification of willingness to
accept the delivery goods, to charge the buyer for expenses we have incurred, or for
a minimum of 0.5% of the invoice amount per month. At the same time, all deliveries
and performances made by us up to that point shall become due for payment.
We shall, however, after setting an appropriate deadline and after the expiration of
such deadline proves fruitless, be authorized to otherwise dispose of the delivery
goods and to reschedule delivery to the buyer within a new and appropriate deadline.
8.9 Over- or Under-delivery in the amount of +/- 10 % for bulk goods are
permissive.
9. Receipt, Acceptance, Passage of Risk, Default in Acceptance
9.1 At the very latest, risk passes to the buyer when the delivery goods leave our
plant, including cases where partial deliveries are made or where we have agreed to
other performances such as assuming responsibility for shipping costs or delivery
and installation. To the extent that a formal acceptance is to take place, then this
shall be decisive in determining the passage of risk. It must be carried out promptly
on the acceptance date or if the case warrants our received notification of willingness
to accept the delivery goods can serve this purpose. The buyer shall not be entitled
to refuse the acceptance of the delivery goods if only minor quality deficits are found.
We are entitled to insure all deliveries against transport damage at the buyer's
expense.
In the event that transport damage to a delivery is discovered upon arrival at the
buyer's premises, or if such damage later becomes evident, then the buyer is to
immediately demand a written explanatory report from the carrier.
9.2 If shipping and/or acceptance of the delivery goods is delayed or does not take
place, due to circumstances which we cannot be responsible for, then the risk passes
to the buyer as of the day of the notification of readiness to ship or of the willingness
of the buyer to accept the delivery goods. We undertake to take out the insurance
policy which the buyer requests at the buyer's expense.
9.3 In the event that we damage material delivered to us by the buyer or render
such material unworkable, in particular in the course of carrying out processing or
repair work, then we shall only be liable if the damage was caused by gross
negligence, however such liability shall be restricted to an amount of 10% of the
value of the processing work, provided that no legally prescribed regulations dictate
unlimited liability.
9.4 We insure customers' material which is stored at our premises against fire, at
our own expense. If the buyer desires any further insurance policies be taken out at
his expense, then it is his obligation to requisition these in writing.
10. Retention of Ownership
10.1 We reserve the right of ownership and the right of disposition to the delivery
goods until such time as all payments from the supply agreement and any previous
agreements have been received. This includes accounts receivable from checks and
bills of exchange as well as those from current accounts. Should a liability related to
payment by bill of exchange accrue to us in the course of the buyer's payment, then
this shall in no way eliminate our retention to ownership before the possibility of us
being invoked for the bill of exchange is excluded.
Prior to the full and complete settlement of our aforesaid accounts receivable, the
buyer shall be entitled to continue using the delivered products in the proper course
of his ordinary business, unless a non-assignment agreement has been entered into
with third parties for accounts receivable pursuant to point 10.4 which have been
assigned to us in advance. Prior to full and complete settlement, pledging and
assignment as security shall be prohibited and resale shall only be permitted for
resellers in the course of their usual business, under the condition that the reseller
receives payment from his customer and forwards it to us immediately. Any
intervention expenses which may arise are to be born by the buyer.
10.2 In the case of attachments, confiscation or other dispositions and interference
by third parties, the buyer is to notify us immediately.
10.3 In the event of behavior of the buyer which violates the agreement, in
particular in the event of delayed payment, we shall be entitled, after issuing
appropriate payment reminder, to reclaim the delivery goods and the buyer shall be
obligated to relinquish these.
10.4 The assertion of the reservation of ownership as well as the attachment of the
delivery goods by us shall not be deemed to constitute withdrawal from the
agreement , provided that the German Installment Purchase Act does not apply.
10.5 The buyer at this point assigns to us all accounts receivable up to the
proportionate amount of our invoice, including sales tax/VAT with all ancillary rights,
which he accumulates through resale to customers or third parties. This shall also
apply in cases where the buyer has placed the purchase money claim which has
accrued to him through resale into a current account arranged with a customer or
third party. We will accept the assignment.
10.6 In the event of connection with real estate or moveable property belonging to
third parties or with processing within the framework of a contract for work and
services, then the buyer at this point assigns to us the receivables for work
compensation and/or the resulting share of co-ownership up to the proportionate
amount of our invoice, including sales tax/VAT for the jointly processed conditional
goods. We will accept the assignment.
10.7 The buyer is hereby authorized to independently collect the preceding
accounts receivable which have been assigned, within the framework of his usual
order of business, provided that the collected proceeds are promptly forwarded to us.
Such authorization to collect the assigned accounts receivable shall be revoked in
the event of delayed payment, the petition for out of court insolvency proceedings or
in the case of protest of a check or bill of exchange.
10.8 To the extent that the delivery goods have become essential components or
immovable fixtures of real property, the buyer undertakes, in the event of
noncompliance with the agreed payment deadlines, to allow us to dismantle or
dismount such objects as can be removed without causing a substantial impediment
to the structure, so as retake possession of the objects. If the buyer interferes with
our aforesaid rights, then he shall be obligated to compensate us for any resulting
damages. The expenses for dismantling, dismounting or other expenses which arise,
are to be born by the buyer.
10.9 If the realizable value of the collateral securities which have been reserved for
us, either solely for the purposes of this retention of ownership clause or together
with any other collateral, exceeds our secured claims by more than 10%, then we
shall be obligated to the same extent to release collateral of our choice, if the buyer
thus demands.
10.10 We are entitled, at the expense of the buyer, to insure the delivery goods
against theft, fire, water and other damage, unless the buyer can provide evidence of
already having done so himself.
10.11 In the event of behavior on the part of the buyer which violates the agreement,
in particular in the event of delayed payment, we shall be entitled to repossess the
delivery goods after an appropriate reminder process and the buyer shall be
obligated to return the goods.
10.12 The filing of a petition for insolvency proceedings shall entitle to withdraw from
the agreement and to demand the immediate return of the delivery goods.
11. Liability for Delivery Deficiencies (Warranty)
For redhibitory defects and deficiencies in title of deliveries, we provide, to the
exclusion of any further claims and subject to point 12, the following warranty:
Redhibitory Defects
11.1 All those parts which prove to be defective due to circumstances or causes
which occurred prior to passage of risk are, at our option, either to be reworked at no
charge or replaced. The detection of any such defects is to be reported in writing to
us at once. Defective parts which are replaced shall become our property.
11.2 For the carrying out of all reworking or substitute deliveries which we deem
necessary, the buyer is to grant us upon notifying us of the problem, the time and
opportunity required to remedy the problem, otherwise we shall be released from any
liability for the resulting consequences. The buyer shall only have the right to remedy
the defects himself or to have them remedied by third parties and subsequently
demand compensation from us for the necessary expenses in urgent cases, where
operational safety is at risk, or, in order to prevent extraordinarily large losses or
damage from occurring, whereby we are to be notified immediately in such cases.
11.3 Of the direct costs which arise as a result of the reworking or substitute
delivery, we shall bear - provided that the complaint proves to be justified - the cost of
the substitute parts, including shipping free border, as well as reasonable costs for
installation, disassembly and removal, and, within the Federal Republic of Germany,
if desired, and if the circumstances of individual cases make it more economical, the
provision of our fitters and support personnel. In all other cases the buyer shall bear
such costs. Defective parts which are replaced shall become our property.
11.4 The manufacturer shall have the right, within the scope of legal regulations, to
withdraw from the agreement, if we - subject to legal exceptions - allow an
appropriate deadline, which has been granted to us for the reworking or replacement
of the delivery goods, to expire without satisfactory results. If only a minor defect is
present, then the buyer shall only be entitled to a reduction in the contract price of the
delivery goods. In all other cases, the right to price reductions shall be excluded.
11.5 For the following cases in particular, no warranty shall apply:
Improper use or use other than intended use, faulty assembly or commissioning by
the buyer or third parties, normal wear, faulty or negligent treatment, improper
maintenance, use of unsuitable operating material, inadequate housing, deficient
building surface, chemical, electrochemical or electrical influences, provided that we
are not responsible for such conditions.
11.6 If the buyer or a third party carry out overhaul work in an improper manner,
then the supplier shall not be liable for any resulting consequences. The same shall
apply for any alterations which are made to the delivery goods without the prior
consent of the supplier.
11.7 If parts or material are delivered by the buyer for the purpose of processing or
providing materials which are necessary for the completion of a job order, then,
unless otherwise agreed upon, there shall be no incoming goods inspection for nonobvious
defects for such goods.
11.8 If computer software is to be included within the scope of our performance,
then the following shall apply:
a) A warranty shall apply that the delivered software does not contain any
reproducible errors. The proper and intended use as specified in the agreement,
however, is a condition of the warranty.
b) The buyer is to notify us immediately if program errors are discovered.
c) Reported errors are to be remedied by us. If the correction of an error proves to
be impossible, then we will have to develop an alternative solution to the
problem.
d) If we are unable to fulfill our obligations from c), then the buyer shall have the
option of accepting an appropriate reduction the payment agreed upon (to
include for equipment for which use is significantly impaired, due to the program
error) or the termination of the agreement.
e) No warranty shall apply that the delivered software meets the special
requirements of the buyer.
Deficiencies in Title
11.9 Should the use of the delivery goods lead to a breach of industrial property
rights or copyrights, then we will, on principle, secure at our expense the right for the
buyer to continue using the delivery goods, or, we will modify the delivery goods in a
manner which is reasonable for the buyer and which eliminates the breach of
property rights.
If this is not possible to be done under economically suitable conditions or within a
suitable period of time, then the buyer is entitled to withdraw from the agreement. We
also shall be entitled to withdraw from the agreement if the aforesaid requirements
are met.
Moreover, we shall indemnify the buyer against any undisputed claims of the
respective owner of the property right or against such claims which are pronounced
and granted through due process of law.
11.10 Our obligations pursuant to point 11.9, in the event of breach of property rights
and copyrights, are ultimately subject to point 12 below.
Such obligations shall only exist if:
• the buyer notifies us immediately about asserted breaches of property rights or
copyrights,
• the buyer provides us with reasonable support in our efforts to defend against
any asserted claims or allows us to carry out the modification measures pursuant
to point 11.9,
• all defensive measures, including out of court settlements, are left open to us as
options,
• the deficiency in title does not stem from an instruction given by the buyer, and
• the breach of rights was not caused by the buyer modifying the delivery goods on
his own or using them in a manner not authorized by the agreement.
12. Liability
12.1 If, through our fault, the delivery goods cannot be used by the buyer as
specified in the agreement, as a result of failure to implement or failure to properly
implement suggestions or advice made or given before or after entering the
agreement, or through violation or disregard of any other subsidiary contractual
obligations, in particular the instructions for the use and maintenance of the delivery
goods, then the provisions stipulated in points 11 and 12.2 shall respectively apply, to
the exclusion of any further claims of the buyer.
12.2 For damage which has not occurred to the delivery goods themselves, we
shall, for whatever legal reasons may apply, only be liable:
• if intent is present,
• in the case of gross negligence on the part of the owner, high managerial agents
or executive employees,
• in the case of culpable injury to life, limb or health,
• in the case defects that we have fraudulently kept secret or the absence of which
we have guaranteed,
• in the case of defects to the delivery goods, to the extent that liability exists,
pursuant to product liability laws, for injury to persons or damage to property for
privately used objects and
• in the event of culpable breach of material contractual obligations we shall also
be liable in the case of gross negligence committed by non-executive employees
or ordinary negligence, whereby the latter shall be limited to reasonably
foreseeable damages which are typical for such agreements.
Any other claims are excluded.
13. Our Claims for Damage Compensation in the Event of Nonperformance
on the Part of the Buyer
In the event that we are entitled to demand compensation for damages due
nonperformance, then the lump-sum damages to be compensated are to amount to
at least 20% of the price agreed upon, without sales tax/VAT.
The amount of compensation is to be increased if we can provide evidence of larger
damages and correspondingly to be decreased if the buyer can provide evidence of
smaller damages.
14. Assembly , Commissioning
To the extent that assembly and/or commissioning are to be included within the
scope of our performance, then the following supplementary conditions shall apply:
14.1 Price
Unless otherwise agreed upon, performance is to be compensated according to the
amount of time needed, using our current rates for assembly. Additional payment is
to be made for material expenses, as well as for travel expenses for our personnel,
transport expenses, customs, custom's charges, transport insurance for luggage and
tools, expenses for the procurement of identification documents as well as for other
out-of-pocket expenses such as telephone charges etc…
14.2 Invoicing
The buyer is to certify the working, travelling and waiting time required by the
assembly personnel, as well as their work output, on the assembly register provided
by the assembly personnel. If the buyer refuses certification, or if for some other
reason it is not possible for our personnel to obtain the certification, then invoicing
shall be carried out on the basis of assembly registers filled out by our personnel.
All secondary jobs (for example masonry, mortising, plastering, carpentry, electrical
wiring and connections, ground work and painting) are not included in the offer
unless they are listed in separate posts with their corresponding quantities and
prices. Work services which we carry out and which are not included in the original
job order, are to be compensated in addition to the services included in the original
job order, at our respective cost rates. The same shall apply for additional costs
which we incur when, for reasons which we are not responsible for, our work services
are interrupted.
14.3 Assistance by the Buyer
The buyer is obligated, at his own expense, to provide assistance during the carrying
out of the work services. In particular, he is obligated to:
a) to provide the necessary amount of suitable auxiliary personnel (masons,
carpenters, fitters and other craftsmen and technicians) at the time when they
are needed for the assembly work,
b) conduct all ground, construction, bedding and framing and scaffolding work,
including the acquisition of building materials, the placing of power and cooling
water connections and drains, the setting up of sanitary facilities, electrical
wiring, masonry and carpentry work, in a timely manner,
c) prepare the necessary paths and for the delivery of assembly parts and suitable
approach ways for cranes,
d) prior to the begin of assembly work , provide the necessary information
pertaining to covered electricity cables and gas and water pipes or other similar
installations, as well as needed information about the structural statics, without
being asked,
e) provide heating, lighting, energy and water, including any necessary
connections
f) provide all required dry, lockable and theft-proof rooms for the storage of tools
and for use as utility rooms for assembly personnel,
g) safeguard the assembly site and materials from damaging influences of any and
all kinds,
h) point out any hazards (e.g. fire hazards in rooms or for materials) which could
arise in connection with cutting, welding, thawing and soldering and take any
necessary precautionary measures (for example the posting of fire guards,
provision of fire extinguishing equipment and material etc.),
i) provide suitable or protective clothing in the case of difficult or complicated
working conditions like the presence of harmful vapors, gases, acids, dust
particles etc.. The same shall apply for protective clothing and protective
equipment which are required due to special circumstances at the assembly site
and which are not typical for our industry
j) immediately provide any necessary medical care should one of our assembly
personnel become ill or suffer and accident, and notify us at once and
k) acquire any required visas and work permits for the assembly personnel, in the
event that the assembly site is located outside the Federal republic of Germany,
promptly procure any prerequisite authorization from public authorities or any
other permission which may be required for the carrying out of the work or
setting up of equipment or installations, inform our assembly personnel as to all
obligations (reports etc) to local authorities as well as about existing safety
regulations, support our personnel in their dealings with such authorities and to
assist them in acquiring any needed permits which would guarantee them
mobility in the country or to return home at any time in the possession of their
property.
14.4 Acceptance
The buyer is obligated to accept the assembly as soon as he has been notified of its
completion. The equipment is to be considered as accepted after a successful trial
commissioning, even if the buyer did not, despite the request of our personnel, take
part therein.
Upon request, individually completed phases of the total work service performance
are to be specially accepted. If the equipment has been entirely or partially put into
use or if the acceptance has been delayed through no fault of ours, then the
acceptance is to be deemed as concluded after a period of two weeks subsequent to
notification of completed assembly.
The use of the equipment prior to acceptance may only take place with our express
consent, in which case, parts which have already been installed into the equipment
are to be considered as already accepted.
15. Time Limitation of Claims
All claims of the buyer - whatever legal principles they may be based upon - expire
after 12 months. For intentional or fraudulent behavior, as well as for cases which are
governed by product liability laws, legal statutes of limitations shall apply. They shall
also apply for defects to building structures or for delivery goods, which were properly
employed in their intended use for building structures, and caused defects to such
building structures.
16. Legal Validity of the Agreement
Should individual provisions of this agreement should become legally invalid, then
the remaining parts shall remain binding and effective. This shall not apply in cases
where upholding the agreement becomes an unreasonable hardship for one of the
parties.
Should a clause be entirely or partially invalid, then the parties to the agreement are
to immediately make all efforts to achieve the economic outcome which was the
intent of the invalid clause, in another legally feasible manner.
17. Jurisdiction, Applicable Law
All actions resulting from disputes arising from the contractual relations defined in this
agreement are to be filed in Giessen, Federal Republic of Germany. However, we do
reserve the right to file suit in the jurisdiction of the buyer's place of business.
The relevant laws of the Federal Republic of Germany as they pertain to the legal
relationships between two domestic parties shall exclusively apply to legal relations
between us and the buyer.
An exception to this stipulation is the application of the uniform UN purchasing law or
other conventions governing the law of purchasing goods and commodities.
for
Schunk Kohlenstofftechnik GmbH
Schunk Ingenieurkeramik GmbH
Schunk Modultechnik GmbH, Ganderkesee
Schunk Bahn- und Industrietechnik GmbH, Wettenberg
Status: 2009 April 2nd
The following terms and conditions shall apply only to persons, who when entering
this agreement, are acting within the scope of their commercial activities, either as
commissioned agents of their respective enterprises or as self employed
businesspeople, as well as to legal persons under public law and to public and/or
government-owned enterprises.
1. Applicable Conditions
All of our deliveries and performances are subject to theses conditions as well as to
any other contractual agreements which may have been entered into. The
purchasing conditions of the buyer shall not be included in this agreement and the
acceptance of orders shall not imply such inclusion.
2. Offers
Our offers are subject to change without notice, unless explicitly stated otherwise in writing.
3. Subject Matter and Scope of Agreement
3.1 Our written order confirmation shall be decisive for determining the extent of
our delivery obligations, or, in the event of a firm offer made by us, if a timely order
confirmation has not been made, then shall such firm offer upon binding acceptance
be decisive for the determination of the extent of our delivery obligations. Ancillary
agreements and alterations must be made in writing.
3.2 Our product information and descriptive material such as illustrations,
drawings sketches and measurement descriptions shall not become subject matter of
the agreement and are only approximately decisive, unless we have explicitly
designated them as binding.
If changes are made to products after submission of an offer as a result of continual
technical development, then we shall have the right to deliver the technically modified
versions of such products. In doing so, we are entitled to deviations from illustrations,
drawings, descriptions color, and measurement, weight, quality and other
specifications, as long as these are reasonably compatible with the mutual interests
of the buyer. It is the obligation of the buyer to inform us when submitting an order, if
we may by no means deviate from given specifications.
3.3 Our specifications shall only apply if we expressly designate them as such in
the order confirmation.
3.4 Any authorization/approval which may be necessary for the export and the use
of the products to be delivered is to be obtained by the buyer at his own expense. If
we assist the buyer in any such endeavors then, he is to reimburse us for any
expenses which we incur.
3.5 The buyer shall provide at his expense any media which may be necessary for
the assembly and use of the products we are to deliver, in a sufficient quantity and in
a non-corrosive form.
3.6 In the event that software is included in our delivery, we shall grant the user a
non-exclusive right to use such software, including the corresponding documentation.
The software is furnished for the purpose of being used on the on the delivery item
for which it was intended. Use of the software on more than one system is not
permitted.
The buyer is only authorized to copy, revise, translate or convert the software from
object code to source code to the extent permitted by law (see §§ 96 a ff German
Copyright Act). The buyer undertakes not to remove or alter any printed
manufacturer specifications - in particular copyright information - without previously
having our express consent. The buyer is authorized to make two back-up copies.
All other rights to the software and the documentation shall remain in our possession
or in the possession of the software supplier. Sublicensing is not permitted.
4. Limiting Condition of Export Authorization / Check of Sanction Register
In the event that we are to make a delivery abroad, then the offer and order
confirmation can only be made subject to the condition precedent, that any export
authorization which may be required is granted by the appropriate authorities.
Deliveries and Services to Customers, who are named on national or international
Sanction Registers, will not be executed in general.
5. Copyright, Confidentiality
We reserve and retain all copyright and property rights to samples, cost estimates,
drawings, models, templates and similar information, whether of physical or
nonphysical nature including information in electrical form, and access to such
information is not to be granted to third parties. Copies or other duplicates may only
be made for the agreed purpose. Neither originals nor duplicates may be handed
over to third parties or made available in any other way.
We undertake to grant access to third parties to material which the buyer has
designated as confidential, only with the buyer's consent.
6. Prices
Unless otherwise stated, prices shall be understood to be ex-works, inclusive of
loading but exclusive of packaging and other costs. If applicable, sales tax/value
added tax is to be added to our prices at the respective legally prescribed rate.
For performance which is to be completed later than four months after signing the
contract, we shall be entitled to charge an appropriate overhead rate on our invoices
for wage or material price increases which may have occurred.
7. Payment, Late Payment, Withholding of Payment, Withdrawal
7.1 Unless otherwise specified, net payment is to be made without deduction and
free of charge at our stated payment office, immediately upon receipt of invoice.
7.2 We are in no way obligated to accept bills of exchange. Any bill charges which
may arise are to be born by the buyer. If a bill is not honored, then all of our accounts
receivable with the buyer shall immediately become due.
7.3 In the event of late payment, we shall be entitled to charge penalty interest at
the level of 8 percentage points above the respective base interest rate. This shall by
no means relieve the buyer of the burden of providing evidence of extraordinary
financial distress.
7.4 We shall be entitled to charge EUR 10.- for every payment reminder we write.
7.5 The buyer is not entitled to withhold payment or to offset such payment due to
counterclaims which are disputed by us.
If, after entering the agreement, it becomes evident that our right to receive payment
is in jeopardy as a result of deficient solvency on the part of the buyer, e.g. if our
credit sale insurance refuses to insure the buyer's accounts receivable in the full
amount, then we shall have the right to refuse performance and to set an appropriate
deadline for the buyer, within which he shall either make contemporaneous payment
for any deliveries made or provide suitable collateral security.
In the event that the buyer refuses to meet such demands or that the aforesaid
deadline expires without success, then we shall be entitled to withdraw from the
agreement and shall have a right to compensation for any damages we may have
incurred.
8. Delivery Date, Delivery Deadline, Delay in Delivery.
8.1 The delivery deadline or delivery date shall only be binding if they are
designated as such in our order confirmation.
8.2 The delivery time allowed shall begin expiring no earlier than the submission of
the order confirmation, not, however, prior to the receipt of any drawings which
required the approval of the buyer, releases for purchasing and procurement
documents and paperwork, approval and any necessary information for the carrying
out of the production order, the clarification of any commercial and technical
questions between the parties to the agreement as well as the fulfillment of any and
all obligations by the buyer, e.g. the performance of a specified down-payment or the
making of payments due from earlier deliveries.
8.3 In the event that noncompliance with the specified delivery deadline is caused
by acts of God, labor disputes or other events which we are not able to influence,
then the delivery deadline shall be extended by an appropriate and reasonable
amount. This shall also apply when such circumstances occur at our subcontractors.
We shall inform the buyer at once as to the beginning and end of such
circumstances.
We shall not be held responsible for the occurrence or for the consequences of such
circumstances as described above, even if these occur during an existing delivery
delay.
8.4 The delivery deadline or delivery date shall be deemed to have been met, if by
the expiration of such deadline, the delivery goods have left our plant or have been
designated as ready for shipping. To the extent that an acceptance of the goods is to
take place, then - except in cases of justified rejection of the goods - such
acceptance date shall be deemed to be definitive or as the case may warrant, the
notification of willingness to accept the delivery goods.
8.5 Our obligation to comply with the delivery deadline is subject to punctual and
correct delivery by our own suppliers.
8.6 The buyer shall be entitled to immediately withdraw from the agreement if
performance in its entirety becomes finally and conclusively impossible for us, prior to
passage of risk. In addition, the buyer shall also be entitled to withdraw from the
agreement if, in the course of filling an order, the fulfillment of a part of a delivery
becomes impossible and the buyer has a vital interest in the refusal of the partial
delivery. If this is not the case, then the buyer shall be obliged to pay the percentage
of the agreement price which corresponds to the partial delivery. The same shall
apply in cases of our subjective inability to perform. Otherwise point 12.2 shall apply.
8.7 In the event that we are delayed with our delivery and such delay causes
damage to the buyer, then the buyer shall be entitled to a lump sum compensation
for such damages suffered due to the aforesaid delay in delivery. The lump sum
payment shall amount to 0.5% of the value of the part of the delivery which could not
be used by the buyer on time or as stipulated by the agreement as a result of the
delivery delay, per full week of delay; such payment shall however, not exceed, in
total, 5% of the value of the delayed part of the delivery.
If we are delayed with our delivery - subject to legal exceptions - and the buyer
grants us a reasonable extension of our delivery deadline, and we fail to comply with
this deadline, then the buyer is entitled to withdraw from the agreement within the
confines of applicable legal regulations.
Other rights which arise due to delay in delivery shall be determined exclusively by
point 12.2 of these standard conditions.
8.8 If shipping or acceptance of the delivery goods is delayed for reasons for which
the buyer is responsible, then we shall be authorized, beginning one month after
notification that the goods are ready for shipment or notification of willingness to
accept the delivery goods, to charge the buyer for expenses we have incurred, or for
a minimum of 0.5% of the invoice amount per month. At the same time, all deliveries
and performances made by us up to that point shall become due for payment.
We shall, however, after setting an appropriate deadline and after the expiration of
such deadline proves fruitless, be authorized to otherwise dispose of the delivery
goods and to reschedule delivery to the buyer within a new and appropriate deadline.
8.9 Over- or Under-delivery in the amount of +/- 10 % for bulk goods are
permissive.
9. Receipt, Acceptance, Passage of Risk, Default in Acceptance
9.1 At the very latest, risk passes to the buyer when the delivery goods leave our
plant, including cases where partial deliveries are made or where we have agreed to
other performances such as assuming responsibility for shipping costs or delivery
and installation. To the extent that a formal acceptance is to take place, then this
shall be decisive in determining the passage of risk. It must be carried out promptly
on the acceptance date or if the case warrants our received notification of willingness
to accept the delivery goods can serve this purpose. The buyer shall not be entitled
to refuse the acceptance of the delivery goods if only minor quality deficits are found.
We are entitled to insure all deliveries against transport damage at the buyer's
expense.
In the event that transport damage to a delivery is discovered upon arrival at the
buyer's premises, or if such damage later becomes evident, then the buyer is to
immediately demand a written explanatory report from the carrier.
9.2 If shipping and/or acceptance of the delivery goods is delayed or does not take
place, due to circumstances which we cannot be responsible for, then the risk passes
to the buyer as of the day of the notification of readiness to ship or of the willingness
of the buyer to accept the delivery goods. We undertake to take out the insurance
policy which the buyer requests at the buyer's expense.
9.3 In the event that we damage material delivered to us by the buyer or render
such material unworkable, in particular in the course of carrying out processing or
repair work, then we shall only be liable if the damage was caused by gross
negligence, however such liability shall be restricted to an amount of 10% of the
value of the processing work, provided that no legally prescribed regulations dictate
unlimited liability.
9.4 We insure customers' material which is stored at our premises against fire, at
our own expense. If the buyer desires any further insurance policies be taken out at
his expense, then it is his obligation to requisition these in writing.
10. Retention of Ownership
10.1 We reserve the right of ownership and the right of disposition to the delivery
goods until such time as all payments from the supply agreement and any previous
agreements have been received. This includes accounts receivable from checks and
bills of exchange as well as those from current accounts. Should a liability related to
payment by bill of exchange accrue to us in the course of the buyer's payment, then
this shall in no way eliminate our retention to ownership before the possibility of us
being invoked for the bill of exchange is excluded.
Prior to the full and complete settlement of our aforesaid accounts receivable, the
buyer shall be entitled to continue using the delivered products in the proper course
of his ordinary business, unless a non-assignment agreement has been entered into
with third parties for accounts receivable pursuant to point 10.4 which have been
assigned to us in advance. Prior to full and complete settlement, pledging and
assignment as security shall be prohibited and resale shall only be permitted for
resellers in the course of their usual business, under the condition that the reseller
receives payment from his customer and forwards it to us immediately. Any
intervention expenses which may arise are to be born by the buyer.
10.2 In the case of attachments, confiscation or other dispositions and interference
by third parties, the buyer is to notify us immediately.
10.3 In the event of behavior of the buyer which violates the agreement, in
particular in the event of delayed payment, we shall be entitled, after issuing
appropriate payment reminder, to reclaim the delivery goods and the buyer shall be
obligated to relinquish these.
10.4 The assertion of the reservation of ownership as well as the attachment of the
delivery goods by us shall not be deemed to constitute withdrawal from the
agreement , provided that the German Installment Purchase Act does not apply.
10.5 The buyer at this point assigns to us all accounts receivable up to the
proportionate amount of our invoice, including sales tax/VAT with all ancillary rights,
which he accumulates through resale to customers or third parties. This shall also
apply in cases where the buyer has placed the purchase money claim which has
accrued to him through resale into a current account arranged with a customer or
third party. We will accept the assignment.
10.6 In the event of connection with real estate or moveable property belonging to
third parties or with processing within the framework of a contract for work and
services, then the buyer at this point assigns to us the receivables for work
compensation and/or the resulting share of co-ownership up to the proportionate
amount of our invoice, including sales tax/VAT for the jointly processed conditional
goods. We will accept the assignment.
10.7 The buyer is hereby authorized to independently collect the preceding
accounts receivable which have been assigned, within the framework of his usual
order of business, provided that the collected proceeds are promptly forwarded to us.
Such authorization to collect the assigned accounts receivable shall be revoked in
the event of delayed payment, the petition for out of court insolvency proceedings or
in the case of protest of a check or bill of exchange.
10.8 To the extent that the delivery goods have become essential components or
immovable fixtures of real property, the buyer undertakes, in the event of
noncompliance with the agreed payment deadlines, to allow us to dismantle or
dismount such objects as can be removed without causing a substantial impediment
to the structure, so as retake possession of the objects. If the buyer interferes with
our aforesaid rights, then he shall be obligated to compensate us for any resulting
damages. The expenses for dismantling, dismounting or other expenses which arise,
are to be born by the buyer.
10.9 If the realizable value of the collateral securities which have been reserved for
us, either solely for the purposes of this retention of ownership clause or together
with any other collateral, exceeds our secured claims by more than 10%, then we
shall be obligated to the same extent to release collateral of our choice, if the buyer
thus demands.
10.10 We are entitled, at the expense of the buyer, to insure the delivery goods
against theft, fire, water and other damage, unless the buyer can provide evidence of
already having done so himself.
10.11 In the event of behavior on the part of the buyer which violates the agreement,
in particular in the event of delayed payment, we shall be entitled to repossess the
delivery goods after an appropriate reminder process and the buyer shall be
obligated to return the goods.
10.12 The filing of a petition for insolvency proceedings shall entitle to withdraw from
the agreement and to demand the immediate return of the delivery goods.
11. Liability for Delivery Deficiencies (Warranty)
For redhibitory defects and deficiencies in title of deliveries, we provide, to the
exclusion of any further claims and subject to point 12, the following warranty:
Redhibitory Defects
11.1 All those parts which prove to be defective due to circumstances or causes
which occurred prior to passage of risk are, at our option, either to be reworked at no
charge or replaced. The detection of any such defects is to be reported in writing to
us at once. Defective parts which are replaced shall become our property.
11.2 For the carrying out of all reworking or substitute deliveries which we deem
necessary, the buyer is to grant us upon notifying us of the problem, the time and
opportunity required to remedy the problem, otherwise we shall be released from any
liability for the resulting consequences. The buyer shall only have the right to remedy
the defects himself or to have them remedied by third parties and subsequently
demand compensation from us for the necessary expenses in urgent cases, where
operational safety is at risk, or, in order to prevent extraordinarily large losses or
damage from occurring, whereby we are to be notified immediately in such cases.
11.3 Of the direct costs which arise as a result of the reworking or substitute
delivery, we shall bear - provided that the complaint proves to be justified - the cost of
the substitute parts, including shipping free border, as well as reasonable costs for
installation, disassembly and removal, and, within the Federal Republic of Germany,
if desired, and if the circumstances of individual cases make it more economical, the
provision of our fitters and support personnel. In all other cases the buyer shall bear
such costs. Defective parts which are replaced shall become our property.
11.4 The manufacturer shall have the right, within the scope of legal regulations, to
withdraw from the agreement, if we - subject to legal exceptions - allow an
appropriate deadline, which has been granted to us for the reworking or replacement
of the delivery goods, to expire without satisfactory results. If only a minor defect is
present, then the buyer shall only be entitled to a reduction in the contract price of the
delivery goods. In all other cases, the right to price reductions shall be excluded.
11.5 For the following cases in particular, no warranty shall apply:
Improper use or use other than intended use, faulty assembly or commissioning by
the buyer or third parties, normal wear, faulty or negligent treatment, improper
maintenance, use of unsuitable operating material, inadequate housing, deficient
building surface, chemical, electrochemical or electrical influences, provided that we
are not responsible for such conditions.
11.6 If the buyer or a third party carry out overhaul work in an improper manner,
then the supplier shall not be liable for any resulting consequences. The same shall
apply for any alterations which are made to the delivery goods without the prior
consent of the supplier.
11.7 If parts or material are delivered by the buyer for the purpose of processing or
providing materials which are necessary for the completion of a job order, then,
unless otherwise agreed upon, there shall be no incoming goods inspection for nonobvious
defects for such goods.
11.8 If computer software is to be included within the scope of our performance,
then the following shall apply:
a) A warranty shall apply that the delivered software does not contain any
reproducible errors. The proper and intended use as specified in the agreement,
however, is a condition of the warranty.
b) The buyer is to notify us immediately if program errors are discovered.
c) Reported errors are to be remedied by us. If the correction of an error proves to
be impossible, then we will have to develop an alternative solution to the
problem.
d) If we are unable to fulfill our obligations from c), then the buyer shall have the
option of accepting an appropriate reduction the payment agreed upon (to
include for equipment for which use is significantly impaired, due to the program
error) or the termination of the agreement.
e) No warranty shall apply that the delivered software meets the special
requirements of the buyer.
Deficiencies in Title
11.9 Should the use of the delivery goods lead to a breach of industrial property
rights or copyrights, then we will, on principle, secure at our expense the right for the
buyer to continue using the delivery goods, or, we will modify the delivery goods in a
manner which is reasonable for the buyer and which eliminates the breach of
property rights.
If this is not possible to be done under economically suitable conditions or within a
suitable period of time, then the buyer is entitled to withdraw from the agreement. We
also shall be entitled to withdraw from the agreement if the aforesaid requirements
are met.
Moreover, we shall indemnify the buyer against any undisputed claims of the
respective owner of the property right or against such claims which are pronounced
and granted through due process of law.
11.10 Our obligations pursuant to point 11.9, in the event of breach of property rights
and copyrights, are ultimately subject to point 12 below.
Such obligations shall only exist if:
• the buyer notifies us immediately about asserted breaches of property rights or
copyrights,
• the buyer provides us with reasonable support in our efforts to defend against
any asserted claims or allows us to carry out the modification measures pursuant
to point 11.9,
• all defensive measures, including out of court settlements, are left open to us as
options,
• the deficiency in title does not stem from an instruction given by the buyer, and
• the breach of rights was not caused by the buyer modifying the delivery goods on
his own or using them in a manner not authorized by the agreement.
12. Liability
12.1 If, through our fault, the delivery goods cannot be used by the buyer as
specified in the agreement, as a result of failure to implement or failure to properly
implement suggestions or advice made or given before or after entering the
agreement, or through violation or disregard of any other subsidiary contractual
obligations, in particular the instructions for the use and maintenance of the delivery
goods, then the provisions stipulated in points 11 and 12.2 shall respectively apply, to
the exclusion of any further claims of the buyer.
12.2 For damage which has not occurred to the delivery goods themselves, we
shall, for whatever legal reasons may apply, only be liable:
• if intent is present,
• in the case of gross negligence on the part of the owner, high managerial agents
or executive employees,
• in the case of culpable injury to life, limb or health,
• in the case defects that we have fraudulently kept secret or the absence of which
we have guaranteed,
• in the case of defects to the delivery goods, to the extent that liability exists,
pursuant to product liability laws, for injury to persons or damage to property for
privately used objects and
• in the event of culpable breach of material contractual obligations we shall also
be liable in the case of gross negligence committed by non-executive employees
or ordinary negligence, whereby the latter shall be limited to reasonably
foreseeable damages which are typical for such agreements.
Any other claims are excluded.
13. Our Claims for Damage Compensation in the Event of Nonperformance
on the Part of the Buyer
In the event that we are entitled to demand compensation for damages due
nonperformance, then the lump-sum damages to be compensated are to amount to
at least 20% of the price agreed upon, without sales tax/VAT.
The amount of compensation is to be increased if we can provide evidence of larger
damages and correspondingly to be decreased if the buyer can provide evidence of
smaller damages.
14. Assembly , Commissioning
To the extent that assembly and/or commissioning are to be included within the
scope of our performance, then the following supplementary conditions shall apply:
14.1 Price
Unless otherwise agreed upon, performance is to be compensated according to the
amount of time needed, using our current rates for assembly. Additional payment is
to be made for material expenses, as well as for travel expenses for our personnel,
transport expenses, customs, custom's charges, transport insurance for luggage and
tools, expenses for the procurement of identification documents as well as for other
out-of-pocket expenses such as telephone charges etc…
14.2 Invoicing
The buyer is to certify the working, travelling and waiting time required by the
assembly personnel, as well as their work output, on the assembly register provided
by the assembly personnel. If the buyer refuses certification, or if for some other
reason it is not possible for our personnel to obtain the certification, then invoicing
shall be carried out on the basis of assembly registers filled out by our personnel.
All secondary jobs (for example masonry, mortising, plastering, carpentry, electrical
wiring and connections, ground work and painting) are not included in the offer
unless they are listed in separate posts with their corresponding quantities and
prices. Work services which we carry out and which are not included in the original
job order, are to be compensated in addition to the services included in the original
job order, at our respective cost rates. The same shall apply for additional costs
which we incur when, for reasons which we are not responsible for, our work services
are interrupted.
14.3 Assistance by the Buyer
The buyer is obligated, at his own expense, to provide assistance during the carrying
out of the work services. In particular, he is obligated to:
a) to provide the necessary amount of suitable auxiliary personnel (masons,
carpenters, fitters and other craftsmen and technicians) at the time when they
are needed for the assembly work,
b) conduct all ground, construction, bedding and framing and scaffolding work,
including the acquisition of building materials, the placing of power and cooling
water connections and drains, the setting up of sanitary facilities, electrical
wiring, masonry and carpentry work, in a timely manner,
c) prepare the necessary paths and for the delivery of assembly parts and suitable
approach ways for cranes,
d) prior to the begin of assembly work , provide the necessary information
pertaining to covered electricity cables and gas and water pipes or other similar
installations, as well as needed information about the structural statics, without
being asked,
e) provide heating, lighting, energy and water, including any necessary
connections
f) provide all required dry, lockable and theft-proof rooms for the storage of tools
and for use as utility rooms for assembly personnel,
g) safeguard the assembly site and materials from damaging influences of any and
all kinds,
h) point out any hazards (e.g. fire hazards in rooms or for materials) which could
arise in connection with cutting, welding, thawing and soldering and take any
necessary precautionary measures (for example the posting of fire guards,
provision of fire extinguishing equipment and material etc.),
i) provide suitable or protective clothing in the case of difficult or complicated
working conditions like the presence of harmful vapors, gases, acids, dust
particles etc.. The same shall apply for protective clothing and protective
equipment which are required due to special circumstances at the assembly site
and which are not typical for our industry
j) immediately provide any necessary medical care should one of our assembly
personnel become ill or suffer and accident, and notify us at once and
k) acquire any required visas and work permits for the assembly personnel, in the
event that the assembly site is located outside the Federal republic of Germany,
promptly procure any prerequisite authorization from public authorities or any
other permission which may be required for the carrying out of the work or
setting up of equipment or installations, inform our assembly personnel as to all
obligations (reports etc) to local authorities as well as about existing safety
regulations, support our personnel in their dealings with such authorities and to
assist them in acquiring any needed permits which would guarantee them
mobility in the country or to return home at any time in the possession of their
property.
14.4 Acceptance
The buyer is obligated to accept the assembly as soon as he has been notified of its
completion. The equipment is to be considered as accepted after a successful trial
commissioning, even if the buyer did not, despite the request of our personnel, take
part therein.
Upon request, individually completed phases of the total work service performance
are to be specially accepted. If the equipment has been entirely or partially put into
use or if the acceptance has been delayed through no fault of ours, then the
acceptance is to be deemed as concluded after a period of two weeks subsequent to
notification of completed assembly.
The use of the equipment prior to acceptance may only take place with our express
consent, in which case, parts which have already been installed into the equipment
are to be considered as already accepted.
15. Time Limitation of Claims
All claims of the buyer - whatever legal principles they may be based upon - expire
after 12 months. For intentional or fraudulent behavior, as well as for cases which are
governed by product liability laws, legal statutes of limitations shall apply. They shall
also apply for defects to building structures or for delivery goods, which were properly
employed in their intended use for building structures, and caused defects to such
building structures.
16. Legal Validity of the Agreement
Should individual provisions of this agreement should become legally invalid, then
the remaining parts shall remain binding and effective. This shall not apply in cases
where upholding the agreement becomes an unreasonable hardship for one of the
parties.
Should a clause be entirely or partially invalid, then the parties to the agreement are
to immediately make all efforts to achieve the economic outcome which was the
intent of the invalid clause, in another legally feasible manner.
17. Jurisdiction, Applicable Law
All actions resulting from disputes arising from the contractual relations defined in this
agreement are to be filed in Giessen, Federal Republic of Germany. However, we do
reserve the right to file suit in the jurisdiction of the buyer's place of business.
The relevant laws of the Federal Republic of Germany as they pertain to the legal
relationships between two domestic parties shall exclusively apply to legal relations
between us and the buyer.
An exception to this stipulation is the application of the uniform UN purchasing law or
other conventions governing the law of purchasing goods and commodities.