Preamble
Our deliveries and services are – and will continue to be – rendered exclusively on the basis of the following terms and conditions, even if we do not specifically refer to them in individual cases. Their applicability can only be wholly or partially excluded by express written agreement in individual transactions. These terms and conditions also apply to sales based on a trade clause, particularly the Incoterms. General terms and conditions, especially the purchaser’s terms of purchase, are not applicable to our deliveries and services. They do not obligate us even if we do not specifically object to them in individual cases; we hereby object to them. At the latest upon receipt of the goods or services, our General Terms and Conditions of Delivery and Sale shall be deemed accepted.

I. SCOPE OF DELIVERY OBLIGATION

1. Our offers are non-binding, even if submitted upon the purchaser’s request. A legally binding contractual relationship with the purchaser generally only comes into existence when we have confirmed the order in writing, which can also be done by fax or computer-generated without a signature; the same applies to contract amendments or additions.

Our written order confirmation is decisive for the scope, nature, and time of delivery.

2. We reserve the right to make design changes. Our catalogs are constantly being revised. Illustrations and drawings contained therein are non-binding and not part of the agreed quality. Nor do they constitute a durability or quality guarantee or any other commitments.

3. Documents pertaining to the offer, such as drawings, data sheets, illustrations, plans, etc., are only approximate unless expressly designated as binding. The documents remain our property; we reserve all rights thereto. They may not be made accessible to third parties without our written consent and must be returned to us immediately upon request at any time.

4. Call-off orders must be called off and accepted in a timely manner and in agreed partial quantities. For call-off orders without agreement on terms, production batch sizes, and acceptance dates, we may demand a binding determination thereof no later than 3 months after order confirmation. If the purchaser does not comply with this demand within 3 weeks, we are entitled to set a two-week grace period and, after its fruitless expiry, to withdraw from the contract or refuse delivery and claim damages.

If the contract quantity is exceeded by individual call-offs, we are entitled, but not obliged, to deliver the excess. We may charge for the excess at the prices valid at the time of the call-off or delivery.

II. PRICE

1. Prices are generally EURO prices. The statutory value-added tax will be charged additionally at the currently applicable rate.

2. For domestic deliveries, prices are ex works, uninsured, and exclusive of packaging; and for international deliveries, free German border or FOB German air or seaport, including export packaging and transport insurance.

3. Surcharges and recalculations of the agreed remuneration are permissible if circumstances, such as increases in material costs, wage costs, energy costs, public charges, etc., compel us to do so and the delivery or service is to take place later than 4 months after contract conclusion. In the event of other price increases, the purchaser has a right of withdrawal if the list price has risen significantly more than the general cost of living. Deliveries from follow-up orders placed after a price change will be charged at new prices, without the purchaser being entitled to a right of withdrawal on that account.

III. DELIVERY

1. The delivery period begins with the dispatch of the order confirmation, but not before all details of the order execution have been clarified and not before receipt of an agreed advance payment or provision of materials. The delivery period is met if the delivery item has been dispatched or collected by its expiry, or if readiness for dispatch has been notified, should dispatch not occur through no fault of ours.

2. Force majeure and other events for which we are not responsible, which may jeopardize the smooth execution of the order, in particular delivery delays on the part of our suppliers, traffic and operational disruptions, labor disputes, material or energy shortages, entitle us to withdraw from the contract wholly or partially or to postpone delivery, without the purchaser being entitled to claims for compensation as a result. The purchaser may demand a declaration from us as to whether we intend to withdraw or to fulfill the contract within a reasonable period. If we do not declare ourselves, the purchaser may withdraw from the contract.

The aforementioned events or circumstances are not our responsibility even if they occur during an existing delay in delivery.

3. In the event of a delay in delivery for which we are responsible, we must be granted a reasonable grace period. After the expiry of this period, the purchaser may claim damages and/or withdraw from the contract to the extent that the goods have not been reported ready for dispatch or delivered by the expiry of the period. There is no right of withdrawal if the delay in delivery, i.e., the exceeding of the delivery period, is not attributable to us.

Claims for damages in lieu of performance are only available to the purchaser if the cause of the damage is based on intent or gross negligence on our part. This does not apply if a fixed-date transaction exists.

4. Delivery obligations and delivery periods are suspended as long as the purchaser is in default of acceptance or other obligations, without affecting our rights arising from the purchaser’s default, or if the purchaser has exceeded the credit limit granted by us. In this case, the risk of accidental loss or deterioration also passes to the purchaser at the time they fall into default.

5. The originally agreed delivery period is cancelled if an order modification occurs with our written consent.

6. Reasonable partial deliveries and deviations (max. +/- 10%) from the ordered quantities are permissible, provided these are reasonable for the purchaser, taking into account their interests.

7. The weight and number of units of the delivered goods, as determined by us, are decisive for invoicing.

IV. SHIPMENT

1. Shipment is generally at the purchaser’s expense and risk from a location to be determined by us.

2. We shall choose packaging, method of shipment, and shipping route at our sole discretion, unless the purchaser has specific requests in this regard. Additional costs for special requests of the purchaser shall be borne by them. We assume no obligation for the cheapest shipment.

3. If shipment or delivery is delayed at the purchaser’s request, we are entitled to set a reasonable period for acceptance for the purchaser and, after its fruitless expiry, to demand immediate acceptance and compensation for our damages due to delay.

V. TERMS OF PAYMENT

1. The conditions stated in our order confirmation apply to payment. Payments for international deliveries must generally be made by irrevocable, confirmed letter of credit.

2. Checks are accepted only with the usual reservation. Expenses shall be borne by the purchaser. For all types of payments, the day on which we can dispose of the amount is considered the day of fulfillment.

3. If payments are deferred or made later than agreed, interest at a rate of 8 percentage points above the respective base rate of the European Central Bank will be charged for the interim period, without the need for a reminder. We reserve the right to claim further damages for delay. The purchaser reserves the right to prove a lower amount of damages due to delay.

4. The purchaser is not entitled to offset counterclaims unless their claims are acknowledged by us, undisputed, or legally established. The purchaser also has no right of retention due to disputed counterclaims.

5. All our claims become due immediately, regardless of the term of any bills of exchange accepted and credited, if the payment terms are not met or if circumstances become known to us that are likely to reduce the purchaser’s creditworthiness. We are then also entitled to execute outstanding deliveries only against advance payment or security, or to withdraw from the contract after a reasonable grace period and/or to demand damages instead of performance. Furthermore, we may prohibit the resale and processing of the delivered goods and demand their return or the transfer of indirect possession of the delivered goods at the purchaser’s expense, and revoke the collection authorization according to Section IX. 7. The purchaser hereby authorizes us to enter their premises and remove the delivered goods in the aforementioned cases.

6. Payments are generally credited against the oldest due invoice. As long as an older invoice remains open, the purchaser is not entitled to claim a discount when paying later invoices.

VI. COMPLAINTS AND NOTIFICATION OF DEFECTS

1. Complaints due to incomplete or incorrect delivery or notifications of recognizable defects must be communicated to us in writing without delay, but no later than 2 weeks after receipt of the goods. Other defects must be communicated in writing without delay, but no later than 2 weeks after discovery.

In the event of untimely notification of complaints or defects, warranty claims are excluded. In the event of timely notification, we are obligated to provide warranty services according to Section VII.

2. In the event of transport damage, the purchaser must obtain a damage report from the railway or postal service or from the carrier for us.

3. Defects in a part of the delivered goods do not entitle the purchaser to complain about the entire delivery, unless the partial delivery is of no interest to the purchaser.

VII. WARRANTY

1. In the event of defects in the delivered items, we are entitled, within a warranty period of 12 months, at our discretion, to remedy the defects or to provide a replacement delivery. This does not apply insofar as the law mandatorily prescribes longer periods, particularly for defects in a building and for goods that have been used for a building in accordance with their usual purpose and have caused its defectiveness. In the event of defect rectification, we are obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, labor, and material costs, insofar as these are not increased by the fact that the delivered items were moved to a location other than the place of performance.

2. For defect rectification, the purchaser must grant us the time and opportunity deemed necessary by us at our reasonable discretion. Replaced parts become our property.

3. If subsequent performance fails, if we allow a reasonable grace period granted to us for this purpose to expire without delivering new goods or remedying the defect, or if subsequent performance is impossible or refused by us, the purchaser has the right to withdraw or to reduce the purchase price, as well as in the event of our inability to perform subsequently.

4. The warranty does not cover defects and/or damages resulting from natural wear and tear, nor defects and/or damages arising from faulty or negligent treatment, excessive strain, unsuitable use, incorrect handling, etc., as well as influences not stipulated in the contract, provided that the damages are not attributable to our fault.

5. The warranty claim cannot be transferred to third parties without our consent.

6. We are not liable for defects resulting from improper modifications and repair work carried out by the purchaser or third parties.

7. For essential third-party products, our liability is limited to the assignment of the warranty claims to which we are entitled against the supplier of the third-party product, unless satisfaction from the assigned right fails or the assigned claim cannot be enforced for other reasons.

8. Further claims of the purchaser against us, regardless of their legal basis, are excluded, unless otherwise stipulated below, in particular claims for compensation for damages that do not arise and/or exist on the delivered goods themselves (e.g., loss of profit, consequential damages, other financial losses); this exclusion of liability does not apply insofar as we are mandatorily liable due to intent, gross negligence, or a guarantee, or if a material contractual obligation is violated, as well as in cases of injury to life, limb, body, and health.

In the event of negligent, but not grossly negligent, breach, our liability is limited to compensation for typical, foreseeable damage.

9. The above provisions apply mutatis mutandis to the delivery of goods other than those contractually agreed.

VIII. LIABILITY, STATUTE OF LIMITATIONS

1. The exclusion and limitation of our obligation to pay damages, as regulated in Section VII. 8., also apply mutatis mutandis to all cases of our obligation to pay damages due to breach of duties arising from legal or quasi-legal obligations and from tort. Claims according to §§ 1, 4 of the Product Liability Act, as well as due to impediments to performance at the time of contract conclusion or impossibility for which we are responsible, remain unaffected by this. This exclusion of liability does not apply insofar as we are mandatorily liable due to intent, gross negligence, or a guarantee, or if a material contractual obligation is violated, as well as in cases of injury to life and health.

2. If our obligation to pay damages is excluded or limited, this also applies to the personal liability of our organs, employees, and vicarious agents or assistants.

3. The purchaser’s claims mentioned in paragraph 1 generally become time-barred after 24 months, calculated from the end of the year of the transfer of risk. If the statutory limitation period is shorter than 24 months, this period applies to the purchaser’s respective claims. The shortening of the limitation period does not apply to claims arising from tort or product liability.

4. The statutory provisions regarding the burden of proof remain unaffected.

IX. RETENTION OF TITLE

1. All delivered goods remain our property (reserved goods) until all claims, in particular the respective balance claims, to which we are entitled against the purchaser from the business relationship, have been fulfilled. This also applies if payments are made on specifically designated claims.

2. In the event of the reserved goods being combined and mixed with other goods by the purchaser, we shall be entitled to co-ownership of the new item in proportion to the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires due to combination, the purchaser hereby transfers to us the ownership rights to the new item to which they are entitled, to the extent of the invoice value of the reserved goods, and shall store them for us free of charge. The co-ownership rights arising therefrom shall be considered reserved goods within the meaning of paragraph 1. We accept the transfer.

3. The purchaser may only sell the reserved goods in the ordinary course of business, under their terms and conditions, if they include a comprehensive retention of title corresponding to these provisions, and as long as they are not in default, provided that the claims arising from the resale according to paragraphs 4 and 6 are transferred to us. They are not entitled to other dispositions of the reserved goods; in particular, the authorization to dispose of the reserved goods shall be deemed revoked without further notice if insolvency proceedings are applied for against the purchaser’s assets or liquidation is initiated.

4. The purchaser’s claims arising from the resale of the reserved goods are hereby assigned to us. They serve as security to the same extent as the reserved goods. We hereby accept the assignment.

5. If the reserved goods are sold by the purchaser together with other goods not sold by us, the assignment of the claim from the resale applies only to the extent of our invoice value of the respective reserved goods sold. In the event of the sale of goods in which we have co-ownership shares according to paragraph 2, the assignment of the claim applies to the extent of these co-ownership shares.

6. If the reserved goods are used by the purchaser for the fulfillment of a contract for work or a contract for work and materials, paragraphs 4 and 5 apply mutatis mutandis to the claim arising from this contract.

7. The purchaser is entitled to collect claims arising from the sale according to paragraphs 3, 5, and 6 until our revocation, which is permissible at any time. We will only exercise the right of revocation in the cases of paragraph 3 and Section V. 5. The purchaser is in no case authorized to assign the claims otherwise. Upon our request, they are obliged to immediately inform their customers of the assignment to us, provided we do not do so ourselves, and to provide us with the information and documents necessary for collection. Pledging or transfer of ownership by way of security of the reserved goods is not permitted to the purchaser.

8. Our retention of title is conditional such that upon full payment of all claims, ownership of the reserved goods automatically transfers to the purchaser, and the assigned claims are unconditionally due to them. If the value of the existing securities exceeds the total secured claims by more than 20%, we are obliged, upon the purchaser’s request, to release securities of our choice to that extent. For the valuation of the securities, their realizable value shall be decisive as the security value.

9. The purchaser must immediately notify us of any attachment or any other endangerment or impairment of our property and claim rights by third parties, submitting the seizure protocols or other relevant documents, and shall, for their part, do everything to protect our rights.

10. We are entitled at any time to enter the purchaser’s warehouse and business premises to remove, segregate, or mark the reserved goods. Upon request, the purchaser must provide us with all relevant information about the reserved goods and hand over necessary documents. The purchaser is obliged to comprehensively insure the reserved goods at their own expense in our favor and to provide proof of insurance to us upon request. They hereby assign all resulting insurance claims to us; we accept this assignment.

11. The assertion of our retention of title does not constitute a withdrawal from the contract. The purchaser’s right to possess the reserved goods expires if they fail to fulfill their obligations under this or any other contract. We are then entitled to take possession of the reserved goods ourselves and, without prejudice to the purchaser’s payment and other obligations towards us, to realize the best possible value through a private sale or by auction. The proceeds of realization will be credited against the purchaser’s liabilities after deduction of costs. Any surplus shall be paid out to them.

12. If the retention of title or the assignment is not effective under the law of the jurisdiction where the goods are located, a security corresponding to the retention of title or assignment in that jurisdiction shall be deemed agreed. If the purchaser’s cooperation is required in this regard, they must take all measures necessary for the establishment and maintenance of such rights.

X. TOOLS

1. Tools, molds, fixtures, and similar items – hereinafter referred to as “Tools” – are fundamentally our property, even if the purchaser has paid for them wholly or partially. This applies regardless of whether we ourselves or third parties commissioned by us have manufactured the Tools.

2. We undertake not to manufacture parts for third parties using Tools for which the purchaser has borne the entire costs, as long as the purchaser places follow-up orders with us. This obligation expires, without the purchaser acquiring any claim for reimbursement of any kind against us, if no further orders are received by us within two years after the last order.

3. We will store and maintain the Tools free of charge. The costs for maintenance and repairs shall be borne by the purchaser. Our storage obligation expires after the two-year period mentioned in paragraph 2.

4. The foregoing provisions (paragraphs 1-3) do not apply to Tools for generally customary and usable articles.

XI. THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS

If we are to manufacture according to the purchaser’s drawings, models, or samples, the purchaser guarantees to us that third-party intellectual property rights will not be infringed thereby. Should this nevertheless occur, the purchaser must indemnify us against any third-party claims to the full extent and fully compensate us for any damage incurred. If a third party asserts industrial property rights to which they are entitled, we are entitled to immediately cease the manufacture or delivery of the items without examining the legal situation.

XII. OTHER CONDITIONS

1. The place of performance and – provided the purchaser is a merchant – the place of jurisdiction for both contracting parties is Gosheim, including in cheque proceedings. We are also entitled to sue the purchaser at their general place of jurisdiction.

2. All legal relations between us and the purchaser shall be governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

3. Should individual conditions and contractual provisions be or become invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provisions shall be reinterpreted in such a way that the legal and economic purpose intended with them is achieved. The same applies if a contractual gap requiring supplementation becomes apparent during the execution of the contract. The contracting parties undertake to immediately replace the invalid provisions with legally effective agreements or to close the contractual gap.

4. The purchaser’s data will be stored by us within the scope of the purpose of the contractual relationship.

Laudenbach Formtechnik GmbH