I.General/Acknowledgment of our Terms of Business 1. The following Terms of Business and Delivery apply for all orders to be executed by us. Upon fulfillment of the first contract under these conditions, these terms shall apply automatically to all further sales and deliveries. Changes to these terms become effective once they are first received by our customers.
2. The contents of this contract is governed by these terms alone. Other arrangements, especially the customer´s terms of business, will take effect only with our written confirmation. Thus, we explicitly refuse to accept our customers´references to their terms of business or purchase. An acceptance of deliveries or of part-deliveries always implies a renunciation of those of the customer´s own terms of business which contradict our terms and a general acceptance thereof. II.Conclusion of Contract 1. Our price quotations are not binding and without obligations. A contract is effected only through our written confirmation of your order. However, when we have submitted a quotation with a time limit, the contract will become effective with our customer´s acceptance, even if our confirmation of the contract is not received in time.
2. The documents enclosed with our quotations, such as photos, drawings and lists of weights and other dimensions provide approximate information only unless explicitly stated otherwise. We reserve property and copyrights, of the quotations, drawings and other documents; they may not be available to third parties or to used for other than contract-related purposes. Similarly, when we are intrusted with plans explicitly marked „Commercial – In Confidence“ by our customers, we will not make these available to a third party without our customer´s prior consent.
3. Changes to our price quotations and to the terms of sale and delivery upon which our quotations are based require our confirmation in writing to become effective. Additional and verbal agreements as well as arrangements with travelling agents, salesmen and representatives also have to be in writing. III.Prices and Cost of Delivery 1. The prices quoted do not include the currently effective value-added tax rate. Our customer alone must bear the extra costs resulting from his special requirements.
2. Unless other terms have been agreed in writing, our prices are „Ex-Factory“, including loading in the factory. The consignments are sent „camage forward“, i.e. the receiver pays the freight charges; packing will be billed at net cost. IV.Payment 1. Payment is to be made in cash within 30 days of the invoice without any discounts. Discounts may not be deducted from new bills if previous ones have not yet been paid. Our employees, representatives and travelling agents are authorized to collect cash only with a written collection order. Bills of exchange and cheques are accepted in lieu of cash only upon prior agreement. All expenses resulting from such means of payment have to be paid by our customers.
2. If a customer comes in default with a payment due, we will charge interests 3 per cent above the current discount rate of the „Deutsche Bundesbank“ and reserve the right to take further legal action. If the contract constitutes a commercial transaction as defined in § 343 of the German Commercial Code, interests will be charged at a rate if 3 per cent above the current „Deutsche Bank“ discount rate starting on the day when the bill is due, pending subsequent claims for higher damages resulting from the delay.
3. We are not obliged to fulfill the contract as long as a customer does not honour his obligations as agreed, especially as long as overdue payment is still outstanding. A compensatory settlement between our claims to a customer and the customer´s claims is excluded, unless we have already acknowledged the customer´s claims in writting or if they have already been declared legally binding. Equally excluded are rights of retention which are not based on the very same contract, unless we have explicitly and in writing recognized the claims submitted by the customer.
4. If a customer is already in default with his payments and if other facts appear which indicate a considerable deterioration in our customer´s financial situation, or if there is considerable doubt regarding a customer´s ability or willingness to effect payments as they become due, then we are entitled to demand immediate payment of all current liabilities, including those for which cheques or bills of exchange have already been submitted, and to demand cash in advance for all other outstanding shipments. Besides the other legal courses of action open to us in such a situation, we are also entitled to withdraw from the contract upon expiration of an appropriate time period in which the payments may be made. The customer, however, may provide appropriate securities to avert our recourse to the above measures. If a customer exceeds the last day of payment as described in paragraph IV.1 above by more than 30 days – this would allow us to demand cash in advance for outstanding shipments – he can revert our recourse to this right by providing appropriate securities. We are entitled to the rights outlined in paragraph IV, especially in situations in which bankruptcy or arrangement proceedings have been iniciated against a customer´s company or if a request for such proceedings has been turned down for a lack of asserts. The same applies if one of the customer´s cheques or bills of exchange is dishonoured, or if the customer´s enterprise is dissolved or liquidated, or if wrights of execution of more than an insignificant volume are presented against parts of the customer´s property. V.Delivery and Delivery Times 1. The type and size of a consignment will be in accordance with our written confirmation of our customer´s order. If we have submitted a deadline price quotation which the customer accepts within the time limits specified, then this price quotation will serve as the customer´s confirmation of his order in the absence of our timely, separate confirmation.
2. Our times of delivery quoted are not binding unless we have explicitly confirmed a certain date in writing. The delivery period commences with the dispatch of our confirmation of the customer´s order, but not before the customer has provided the documents, authorizations and clearances he has to furnish, as well as not before our receipt of an agreed part-payment. A binding delivery date is considered fulfilled if the consignment leaves our factory or if the customer has been notified of the readiness for shipment before this date is reached. Our observation of the agreed time of delivery requires the customer´s fulfilment of all his obligations stated or implied in the contract.
3. We may effect deliveries in part-shipments in the absence of written provisions of the contrary.
4. If our timely deliveries are prevented by unforeseeable circumstances which cannot reasonably be expected to be averted by a good tradesman, then the delivery date will be postponed by the duration of these circumstances unless it becomes impossible to render the contracted services. Such „Acts of God“ primarily include interferences with our business and production operations by fire, water explosions, strikes, lock-outs, power failures, transportation failures, shortages of materials, etc. It is irrelevant if these conditions occur on our premises or an those of our suppliers. If the delivery time has to be extended, the customer is entitled to withdraw from the contract after he has allowed an appropriate length of time to expire within which we may effect the deliveries. If it ultimately proves impossible or if we become unable to fulfil the contract for the above reasons, then we shall also be cleared of the obligation to render these services.
5. If the failure to honour an agreed delivery date or the inability to render the contracted services is due to circumstances under our control, then the customer will be entitled to cancel all orders which have not been reported ready for shipment at the expiration date; however, if the delivery is only delayed, the customer has to grant us an extension of the delivery period of at least four weeks. Further claims, such as claims for damages resulting from the delayed deliveries or from our inability to render the contacted services, especially claims for a compensation of directly incurred damages, are excluded unless they have have been due to malice or gross negligence or to another violation of the essential obligations of the contract. If the contract constitutes a commercial or business transaction in accordance with § 343 of the German Commercial Code for both parties, we may be held liable for the full payment of damages which are due to malice or gross negligence; in addition, the same applies in all cases of violations of essential contract obligations. In such a case, however, our liabilities will be limited to a compensation of the typically foreseeable damages.
6. If a shipment is delayed at a customer´s request, we will charge him the cost of storage at our factory, or, a minimum of 0.5 per cent of the amount of the invoice per month, starting one month after the customer has been notified of the readiness for shipment. After setting another delivery date and its fruitless expiration, we shall be entitled to use the goods of this consignment and effect our deliveries to this customer after an appropriately extended time. 7. Collection. If the customer desires to collect the goods, the conditions therefore are to be specified at the conclusion of the contract at the latest. Invariably, the goods have to be collected at the factory immediately after the customer has been notified that the consignment is ready. The costs of collection will be at the customer´s expense. If the customer fails to effect the collection, the goods are considered delivered as agreed as soon as they leave the supplying factory. VI.Shipment and Passage of Risk The risk passes to the customer as soon as the goods are handed over to the shipping agent or freight forwarder; at the latest, however, when they leave our factory or storage premises, unless other arrangements have been made explicitly. This also applies in case of part-shipments as well as when we have agreed to provide other services as well, such as freight costs or the actual transportation and installation.
If the dispatch of the consignment is delayed by circumstances under the customer´s responsability , the risk will pass to him as soon as the goods are ready for shipment.
We are not obliged to insure the goods prior to shipment. Upon the customer´s request we are willing to ensure the goods at his expenses. VII.Reservation of Property Rights 1. The goods delivered remain our property until the customer has paid all liabilities from our business contracts. This provision includes also those shipments for which a customer has made dedicated payments. In case of running bills, the property reservation will secure our current debit balance.
2. The customer is entitled to sell the reserved goods to third parties as a part of his normal business transactions and at his normal terms of business as long as he does not delay his payments. He, in turn, is to reserve the property rights of these goods pending their complete payment. The customer must not permit other property rulings, such as pledging the goods or providing them as securities, without our explicit consent in writing. If the customer is in default, or if his financial situation deteriorates considerably, we are entitled to reappropriate the reserved goods for sale elsewhere. The customer is obliged to grant us access to his premises and to reappropriate the goods for which we have retained property rights.
3. Hence,the customer also cedes to us all claims resulting from his sale of reserved property to his customers, including all secondary or acessory rights, to safeguard our claims to him. Within the context of the further transaction, the customer is authorized to effect a settlement of the claims to be ceded to us. If the customer is in default, or if bankruptcy proceedings or a settlement in or out of court have been initiated for his property, or if a cheque/bill of exchange is protested, then we will be entitled to revoke this authority to claim all debts and may demand that the customer provides to collect these of all claims ceded and their debtors, complete with all information required to collect these, and that he hands over all relevant documents and informs the debtors of his transfer of rights. Should one of his customer´s clients insist on an exclusion of assignment, the customer is to inform us to this effect without delay before the re-sale is completed. If the customer is unable to provide other adequate securities for our claims, then we will be entitled to prohibit the further sale of goods delivered by us to such customers who insist on an exclusion of assignment.
4. On our request, the customer is obliged to provide information on his holdings of reserved property goods and on the assignments made in our favour. Should a third party obtain access to the reserved property goods or to the ceded assignments, the customer will notify us without delay and assist us in asserting our claims. He is required to take all legal actions necessary to safeguard our claims.
5. If the total value of the securities we have been given exceeds our claims by more than 20 per cent, we will be obliged, if requested by the customer, to release the securities which exceed our claims.
6. We are authorized to effect an insurance against burglary, breakage, fire, water and other hazards for the goods to be delivered, unless the customer proves to us that he has already contracted for such an insurance. VIII.Warranty 1. In order to pursue claims regarding the faultiness of the goods delivered, the customer has to be send us a notification complete with a description of obvious faults within six weeks of the arrival of the consignment and to return the faulty goods to us. This clause does not effect the extended provision of §§ 377 and 378 of the German Commercial Code regarding the requirement to examine a shipment an receipt and to submit, if required a notice of faultiness without undue delay. The timeliness of a notice of faultiness is determined by our receipt of such a notice: a mention of any defects to representatives, brokers or agents is not sufficient. The consignment is considered accepted if a notice of faultiness is submitted either too late or in an improper form.
2. Our warranty obligations for contract-related claims of all natures extend to 6 months after the first use of the item in question; the maximum length, however, will not exceed 18 months after the delivery.
3. The customer´s right to enforce claims for faultiness becomes invalid by prescription after 6 months, starting from our receipt of a timely notice of faultiness, provided fit has not already fallen under the statue of limitation due to the expiration of the warranty periods stated in paragraph 2 above.
4. We reserve the right to choose between a repair of the faulty goods or the provision of a new item as replacement in the case of justified faultiness claims. The customer has the right either to withdraw from the contract or to demand a price reduction if we fail to make the repairs or send replacements within an appropriate time, or if the repair or the provision of replacement fails or proves impossible. Further claims are excluded; this applies especially for damage scouring on items other than the goods delivered, unless we are guilty of malice, gross negligence or other serious violation of the obligations under this contract. If the contract constitutes a commercial transaction for both parties, the additional limitations listed in paragraph 5 of these Terms of Business and Delivery apply appropriately regarding the liability for such damages. The customer may repair defects himself or through a third party and charge us the resulting costs if this is urgently required to ensure operating safety and to prevent excessive secondary damage. However, he is required to inform us immediately of such a situation.
5. We cannot accept any warranty for damage resulting from the following: inadequate or inappropriate use; faulty installation or operation by the customer or a third party; natural wear and tear; faulty or negligent handling; unsuited operating fuels, exchange parts; faulty construction work; unsuited construction site; chemical, electro-chemical or electrical influences; unless these are due to our error.
6. Provided the notice of faultiness proves justified, we will bear the costs of the replacement part, including shipping costs, as well as the reasonable costs the removal and re-installation of a part if a repair or replacement proves necessary. If we can reasonably be expected to do this, judging from the particular circumstances, we will also pay the costs of the mechanics and assistants required and provided by us. Other costs will be at the customer´s expense.
7. The warranty period for the replacement part and for the repair is three months, but it lasts at least to the end of the regular warranty period for the item delivered. The term of warranty for defects on the delivered product will be extended by the length of the work interruption caused by the repairs.
8. We do not accept and liability for damage resulting from modifications and repairs made by the customer or a third party in an inappropriate manner and without our prior approval.
9. Every delivery or part-delivery is considered a separate transaction in the context of claims or notices of faultiness. Defects found in one (part-)shipment do not have any egal consequences for other shipments.
10. Eurolux shall not be liable for consequential damage unless liability, for example due to intention, is mandatorily prescribed by law. IX.Export Regulations The goods delivered by us must be exported beyond the german borders. In case of violations, the customer is obliged to furnish us with information on the destination of the goods and the conditions of sale; he may also be held liable for all damage resulting from such a violation. X.Liability for Violations of Acessory Obligations If our malice or gross negligence, omitted or faulty proposals and consultations made before or after the conclusion of the contract, or violations of other acessory obligations, especially the instruction in the operation and maintenance of the sold item, make it impossible to use the delivered product as contracted, then we may be held laible in accordance with paragraph VIII; the same applies if a violation of acessory obligations constitutes a violation of the critical obligations of this contract.
XI.Place of Jurisdiction and Performance and Mandatory Out-Of-Court Settlement of Disputes The place of performance and jurisdiction for all issues resulting from disputes or liabilities incurred with a contract of sale is Würzburg, if the customer is a full, or qualified merchant, a corporate body under civil law or a separate public jurisdic estate. Würzburg as place of jurisdiction is also considered accepted if the customer does not have a general place of jurisdiction in Germany. The agreement on the place of jurisdiction also applies to bill of sale/cheque proceedings.
Before having recourse to a state court, conciliatory proceedings before an appropriate, state-accredited conciliation office applying mediation are to be carried out. If no appropriate conciliation office is known, the Bundesverband der Gütestellen e.V. [Federal Association of Conciliation Offices], Berlin, is to choose an appropriate conciliation office. It shall only be allowed to bring legal action before a state court and a court shall only be allowed to take action - even for carrying out independent proceedings for the preservation of evidence - after the conciliation office declared the conciliatory proceedings to be terminated or to have failed. XI.Others An order or individual subdivisions of an order may not be yielded entirely or partially, to be transferred to a third party without our consent in writing. Only german law is applied to this contract. Should one provision of these terms be or become entirely or partially ineffective, then this will not affect the validity of the remaining provisions. In such a case, the parties to the contract are obliged to seek a ruling similar to the invalid provision. The above terms of business may be changed in writing only. Such a written amendment may also be changed in writing only. The above text is a translation of a german original. In case of conflict, the german original version shall prevails.