Terms and Conditions

Ferak Berlin GmbH - General Terms and Conditions of Sale and Delivery (status February 2010)

1. General:
Our deliveries, services and offers apply exclusively in accordance with these general terms and conditions of delivery. Provided the customer is not a consumer within the meaning of Section 13 BGB (German Civil Code), these General Terms and Conditions of Sale and Delivery are an element of each contract entered into by us and our customer.
They also apply – without the necessity of once again expressly referring to the application of these General Terms and Conditions of Sale and Delivery – to all future deliveries, services and offers for the customer.
Terms and conditions of business of the customer or a third-party shall not apply, even if we do not object to their validity separately in an individual case. Such conditions and other contrary agreements and incidental agreements only apply if they are expressly approved in writing. This also applies to amending this written form requirement. Even if we cite a letter containing the terms and conditions of the customer or a third party, or refer to such conditions, this shall not constitute any kind of consent to the validity of such terms and conditions of business.

2. Offers, orders:
Offers are, in principle, subject to change without notice and non-binding.
Orders, irrespective of whether they have been placed with us or our representatives in writing, electronically
or verbally, shall only have binding force for us following written confirmation. If delivery is provided immediately
without confirmation, the invoice shall simultaneously be deemed confirmation of order.
Amendments shall be subject in any case to written confirmation (including fax or e-mail) in order to be deemed valid.
In the event of placing an order electronically, the regulation set out in Section 312 e (1) Sentence 1 Nos.1 to 3 BGB (obligations in electronic transactions) shall be excluded. We do not undertake to confirm receipt of orders received by electronic means.
Where requested by the customer and expressly agreed upon in writing, in the case of large order quantities the goods may be carried in stock and partial quantities may be supplied, and invoiced, on a call-off basis from such stock.
In the event of a non-timely call-off, we shall be entitled to earmark for shipping and invoice the contract quantities that remain in stock and have not been called-off, including without a separate call-up. The customer is to be informed of this as early as possible.

3. Terms and conditions of payment, default, securities:
In the absence of agreements to the contrary, invoice amounts shall fall due for payment in full within 30 days following the invoice date and are to be transferred in euros to one of the bank accounts stated in the invoice.
Receipt of payment (value date) is authoritative in respect of whether or not a payment is made in good time. Potential incidental costs shall be borne by the customer. This applies, in particular, to the costs that arise in the case of export transactions as a result of transfers abroad.
In the case of default in payment, the claim shall incur interest at eight (8) percentage points above the respective base-lending rate (Sections 288 (2), 247 BGB). We reserve the right to assert claims for further-reaching damage, in particular regarding higher interest rates and exchange rate losses etc. The customer is reserved the right to prove that no damage or lesser damage was incurred.
Accepting orders and performing deliveries may be rendered conditional on provision of security or advance payment.
If the customer's financial position deteriorates considerably after entering into the contract (in particular if an application is filed for insolvency, insolvency proceedings are instituted or rejected due to a lack of funds, an application is filed for giving an affirmation in lieu of an oath or an arrest order is issued), we shall be entitled at our discretion to request advance payment or provision of a security within a reasonable period. We shall be entitled to hold back our performance until the advance payment is made or a security is provided. Following expiry of the period, we shall be entitled to withdraw from the contract if the advance payment has not been made or the security has not been provided.
A considerable deterioration in the financial position is also to be assumed if the customer defaults in two payments or one payment in a considerable amount.
Setting off is only permitted by way of undisputed or res judicata counter-claims. A right of retention may only be exercised if and insofar as it is based on the same contractual relationship
We do not undertake to accept bills of exchange or cheques. They shall at all times only be accepted on account of performance. Expenses for discounts and bills of exchange shall be borne by the customer, and fall immediately due for payment. Bills of exchange shall be accepted without guarantee for correct presentation or protest.
If the customer has assigned its claims against us to a third party without our consent, we may also render services on behalf of the customer with discharging effect if we were made aware of the assignment (354a HGB (German Commercial Code)).

4. Delivery and shipping:
Delivery dates or delivery periods are to be stated in writing at all times. They shall only have binding force following express, written confirmation. Transaction for delivery by a fixed date must be expressly described as such and expressly confirmed in writing by us.
If the manufacture, procurement or delivery is hampered or delayed at our plant, our suppliers or forwarding agents as a result of incidents of force majeure or other unforeseeable or extraordinary circumstances for which we are not responsible such as natural disasters, raw material shortages, operational disruptions or industrial action (strikes and lock-outs), the delivery period shall be extended by an appropriate period.
If the stated circumstances render our delivery or performance impossible, we shall be released from our delivery obligations.
If the delivery and/or acceptance is delayed by more than eight weeks as a result of the above-mentioned circumstances, both parties shall be entitled to withdraw from the contract.
In the case of partial or complete cessation of our procurement sources, we do not undertake to cover our requirements via outside suppliers. In such a case, we shall be entitled to distribute the available quantities of stock, taking into account internal requirements provided this is not unreasonable for the customer.
In the absence of express agreements to the contrary, loading and shipping shall apply without insurance at the recipient's risk ex works or distribution warehouse. Goods that have not been accepted shall be warehoused at the customer's risk and cost.
Maßgebend für die Berechnung der Ware ist das bei Versand von uns festgestellte Gewicht bzw. Volumen. Gewichts- /Volumenverluste während der Beförderung der Ware gehen zu Lasten des Kunden.

5. Prices:
The prices do not include turnover tax. This shall be charged separately in line with the respective, valid turnover tax rate.
In the event that a period in excess of four (4) months lies between the time at which the contract is entered into and the delivery, we shall be entitled to demand a delivery price that corresponds to the price valid at the time of delivery and corresponds to the price invoiced to the other customers. This shall not apply if the lapse of time between entering into the contract and the delivery is our responsibility.
In the absence of agreements to the contrary, the delivery prices are to be understood on a net/kg basis, while deliveries shall be based on Incoterms 2010. If deliveries are to be made in containers other than those stated in the offer, the price shall be increased by the special container surcharge valid at the time of invoicing.
We reserve the right to amend the prices appropriately if and insofar as cost increases arise after entering into the contract as a result of amendments to our calculation bases (e.g. collective wage agreements and material price increases) that are not within our control.

6. Reservation of title:
We reserve ownership of the supplied goods up until receipt of all payments resulting from the business relationship, including accessory claims, claims for damages and cashing in cheques and bills of exchange provided this is permissible in accordance with the law to which the purchased goods are subject.
If the reservation of title that is hereby expressly agreed upon is not acknowledged by the law of the country in which the delivery item is located in each case or to the country to which it is brought prior to payment in full, or is only acknowledged in the case of meeting certain prerequisites (e.g. entry in official or court registers and the written form of the agreement etc.), the customer undertakes to inform us of this at the latest upon entering into the contract.
If such a law does not permit the reservation of title or the extended reservation of title and allows us to reserve other laws that are similarly geared towards the security purpose as a reservation of title, we hereby declare that we shall exercise such a right.
The customer undertakes to collaborate on honouring the measures that may be necessary in this respect (in particular compliance with formal requirements etc.).
Processing or finishing of the reserved goods shall apply gratuitously by our order such that we are to be regarded as the manufacturer within the meaning of Section 950 BGB, i.e. we shall retain ownership at each point and level of the processing of the products. This is not associated with any kind of obligation whatsoever on our part.
In the case the customer processes our goods (by connecting, mixing) with other goods that are not our property, the provisions of Sections 947, 948 BGB apply such that we shall acquire co-ownership of the new item in the proportion of the invoice values of the reserved goods to the total value. The purchase price claim for the new item shall be proportionate to the value of our rights to the goods.
The same applies accordingly in the event of mixing with items owned by third parties regarding the customer's remuneration claim.
The customer is authorised to resell the goods sold by us during the ordinary course of business. With regard to such a case, the claims to which the customer is entitled are assigned to us at this point in time in the sum of the invoice amount, including accessory and security rights, as security. We accept this assignment. Upon request, the customer undertakes to state by name the customers to which it has resold the goods.
In the event of a permanent deterioration in the customer's financial situation (see above sub-section 3.4), we may withdraw the authority to resell during the course of ordinary business. It shall end upon receipt of the withdrawal.
The customer shall store the reserved goods on our behalf and undertakes to insure such goods against fire, theft and water damage. The customer hereby assigns to us in the sum of our claims its compensation claims to which it is entitled resulting from the damage of the stated type against insurance companies or other parties under obligation to provide compensation. We accept the assignment. We are entitled to reveal this security assignment and directly collect the claim if the customer fails to honour the obligations resulting from the contracts entered into with us or if it defaults in honouring such obligations.
If the customer sells the claim as part of real factoring, the claim shall immediately fall due for payment and the customer shall assign to us the claim which takes its place against the factor and shall forward to us without delay its sales revenue. We accept this assignment.
The customer is authorised to collect the assigned claims as long as it properly honours its payment obligations. The collection authorisation shall expire in the case of withdrawal, at the latest however in the event of default on the part of the customer or in the event of considerable deterioration in the customer's financial situation. In such a case, we shall be entitled to inform the customers of the assignment and collect the claims. The customer undertakes on request to hand over a detailed list of the claims to which the customer is entitled, including the names and addresses of the customers, the amounts of the individual claims and invoice dates etc., and make available to us all the information required to assert the assigned claims and permit the reviewing of such information.
Insofar as the value of our securities exceeds our outstanding claims by more than 10 %, we shall release them on request. Selecting the securities to be released shall apply at our reasonable discretion.
Where applicable, taking back reserved goods shall not be deemed a withdrawal from contract unless this is expressly stated.
The customer is only entitled to pledge, transfer ownership by way of security or make similar disposals regarding the reserved goods following express written approval. In the event of seizure or other third party intervention, the customer is to notify us without delay and where necessary adopt suitable measures.

7. Guarantee, notification of defects
In the absence of agreements to the contrary, the guarantee for faulty products shall be determined in accordance with the statutory requirements. The obligation to provide a guarantee does not apply to damage as a result of inappropriate handling, storage, setting up or other external effects.
Following delivery to the customer or to the third party determined by the customer, the customer is to carefully inspect the supplied goods with regard to the quantity and condition (where applicable by way of trial processing). The goods shall be approved if we do not receive written notification of defects regarding obvious defects or other defects that were capable of being identified in the case of an immediate and careful inspection within seven workdays following delivery of the delivery item, or otherwise within seven workdays once the defect is identified, or any earlier time at which the defect was capable of being identified by the customer in the case or normal use of the delivery item without a more detailed inspection. The burden of proof that the defect was not capable of being identified lies with the customer. At our request, the rejected delivery item is to be returned to us carriage free. In the case of justified notification of defects, we shall reimburse the cost of the most cost-effective shipping route; this does not apply if the costs increase because the delivery item is at a location other than the location of use as per agreement. Notification of defects is to be given in writing by way of stating the order date and the invoice and shipping number.
The retained samples of the respective batch are authoritative in respect of the supplied goods.
Potential application technology consulting provided verbally, in writing or by trials only applies as a non-binding reference, including in relation to potential third party property rights. It shall not, in particular, release the customer from inspecting the goods in respect of their suitability for the intended procedures and purposes. Further application, use and processing of the goods shall apply beyond our sphere of influence and are therefore exclusively the responsibility of the customer
In the case of justified notification of defects given in good time, we shall, at our discretion, rectify the defect free of charge or subsequently supply fault-free goods (subsequent performance). In the event of delivery regress (Sections 478, 479 BGB), the choice shall be incumbent upon the customer. Our approval is to be obtained in advance if goods are to be returned. We shall acquire ownership of replaced goods.
If we fail to honour a subsequent, reasonable period set by us for rectifying defects or subsequent delivery, the customer shall be entitled, in accordance with the statutory regulations, to withdraw from the contract, reduce the remuneration (abatement), compensation for expenses and, under the preconditions set out in Section 8, claim for damages.
The same applies in the event that the subsequent performance fails twice, in the case of refusal to provide subsequent performance or if the subsequent performance is unacceptable for us.
Withdrawal or abatement may not be asserted in the case of merely an insignificant defect.
Claims by the customer for expenses required for the subsequent performance, in particular transport, travel, working and material costs, are excluded insofar as the expenses increase because the delivery item has subsequently been brought to a location other than the buyer's branch unless bringing the delivery item there corresponds with its intended use.
If the customer has entered into agreements with the third party that extend beyond the statutory, compulsory warranty claims (in particular contractual penalty agreements, or guarantee undertakings etc.), the customer shall not have any recourse claims against us resulting from the forwarding of the delivery to third parties. This shall not apply insofar as and to the extent that we had expressly consented in writing to the agreements extending beyond the statutory, compulsory warranty claims.
If legal action is taken against us for damages by a third party regarding the delivery, the customer shall render us, our legal representatives, our employees and vicarious agents comprehensively exempt (including in respect of reasonable legal defence and prosecution costs, expenses, charges and taxes etc. and regarding reasonable advances) if the cause of the legal action in internal dealings lies within the customer's sphere of dominance and organisation.
The same obligation to render exempt applies to third party damage which – irrespective in whichever manner – is based on failures in the case of the delivery in our sphere of dominance and obligation unless our liability was based on the culpable loss of life, physical injury and detrimental effects on health, intent or gross negligence or the violation of cardinal obligations.
Where third party claims for damages – irrespective in whichever manner – are based merely on minor negligent violation of a cardinal obligation, and exceed the foreseeable damage, the duty to indemnify shall apply to the customer regarding the excessive amount.
All warranty claims shall fall under the statute of limitations in one year from delivery of the goods. This does not affect compulsory, statutory limitation and liability requirements.

8. Liability for damages regarding culpability
Our liability for claims for damages, irrespective on whichever legal grounds these are based, in particular due to impossibility, default, inadequate or wrong delivery, breach of contract, violation of obligations in the case of contractual negotiations and unlawful acts, is restricted in accordance with this Section 8 provided culpability is relevant in each case in that respect.
Unless the matter involves the violation of key contractual obligations, we shall not be liable for damages in the event of minor negligence on the part of our executive bodies, legal representatives, white-collar workers or other vicarious agents. Obligations that are key to the contract include the obligation to provide timely delivery and installation of the delivery item free of significant faults as well as consulting, protection and care obligations that should enable the customer to use the delivery item as per agreement or are aimed at protecting the life of and preventing danger to the personnel of the customer or protecting their property from considerable damage.
Insofar as we are liable for damages in accordance with Section 8.2 on merit, such liability shall be limited to damage that we had foreseen upon entering into the contract as a possible consequence of a breach of contract or which we should have foreseen in the case of applying customary care. In addition, indirect and consequential damage as a result of defects in the delivery item shall only be subject to compensation provided such damage is typically to be expected in the case of using the delivery item as per agreement.
In the event of liability for minor negligence, our obligation to provide compensation for material damage and the resulting additional pecuniary damage shall be limited to an amount of EUR 1,000,000 for each case of damage, including if key contractual obligations are violated.
The above liability exclusions and restrictions apply to the same extent in favour of our executive bodies, legal representatives, white-collar workers and other vicarious agents.
Insofar as we provide technical information or render consulting services, and such information or consulting are not part of the scope of services we are to provide as per agreement, such services shall be rendered gratuitously and by way of exclusion of any kind of liability.
The restrictions of this Section 8 do not apply to our liability of regarding intentional acts, warranted characteristics, loss of life, physical injury or detrimental effects on health or liability in accordance with the Product Liability Act.

9. Documents and secrecy:
Samples, specimens, leaflets, diagrams, drawings, cost estimates and other documents surrendered to the customer as part of initiating a contract, and which are not remunerated separately by the customer, are to be returned to us on request (including all copies). We reserve all ownership, copyright and other commercial property rights to such items and documents. They may not be otherwise used without our written approval. This applies, in particular, to copies and/or making them available to third parties.
Insofar as these items and documents remain in the customer's possession, an indirect possession arrangement is hereby agreed upon (Section 868 BGB). A right of retention regarding these items and documents is excluded.
Means of transport, containers or packaging may only be used for the transport operation and to store therein the goods supplied by us. Potential remaining goods remnants shall not be remunerated. Emptying, cleaning and disposal costs shall be borne by the customer.

10. Place of performance, place of jurisdiction and applicable law:
Berlin, Germany, is deemed the place of performance for the delivery.
Where legally permissible, Berlin is deemed the place of jurisdiction for all disputes resulting from the business relationship. Irrespective of this, we are entitled to bring legal action at the court with jurisdiction for the customer's registered office.
Solely the law of the Federal Republic of Germany, by way of exclusion of IPR and the UN Convention on the International Sale of Goods, is the authoritative law for the entire business relationship. In the absence provisions to the contrary in these conditions, the "Incoterms" as stated in the respective, valid version published by the International Chamber of Commerce shall apply.
Insofar as the contract or these General Terms and Conditions of Delivery contain omissions, it shall be deemed agreed upon to fill such omissions with legally valid provisions in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery as if the contracting parties had been aware of the omission in the provisions.

11. Secrecy:
The contracting parties undertake to keep secret for an unlimited period of time all information accessed in connection with this contract which is designated as confidential or which, due to some other circumstances, is clearly recognisable as a business or operating secret, and neither to record or in any way use such information insofar as this is not required to achieve the contractual purpose

12. Safeguarding clause:
In the event that individual clauses above are or become invalid, this shall not affect the validity of the other provisions and agreements.