(1) Terms and dates indicated by us are not binding unless they have been expressly fixed in our order confirmation in writing. Delivery time is the date fixed in writing in the order confirmation. Should all documents, necessary approvals, cooperation etc. to be supplied by the customer not be produced at least one month before the date of delivery, said date of delivery shall be extended by on month, starting with the date on which all the above-mentioned documents, necessary approvals, cooperation etc. have been completed and received.
(2) The date of delivery shall be considered as having been met if the goods have left our factory within the agreed time of delivery, or, in the event of collection by the customer he has been informed of our readiness for shipment.
(3) If we can prove, that we have not been supplied on time by one of our suppliers despite careful selection of our suppliers and despite the conclusion of the necessary contracts under reasonable conditions, the term of delivery shall be extended by the delay which has been caused by our supplier’s failure to supply us on time. Should the before-mentioned hindrance last for more than one month, the customer shall be entitled to cancel the contract with respect to the part not yet fulfilled. Claims for compensation are excluded in this event.
We shall only be entitled to avail ourselves of the above-mentioned circumstances if we inform the customer about them immediately, i.e. within 3 working days after we have obtained knowledge.
(4) In the event of our being prevented from fulfilling our contractual duties after the conclusion of the agreement by unforeseen, unusual circumstances, which could not be prevented despite taking appropriate measures under the individual circumstances, particularly by interruption of operations, administrative sanctions or interventions, delays of the supply of essential raw material, energy shortages, etc., the delivery period will be reasonably extended. Should performance of delivery become impossible due to the above-mentioned circumstances, we shall be released from our obligation to deliver.
If the above-mentioned circumstances persist for more than one month, both parties shall be entitled to cancel the contract with respect to the part not yet fulfilled.
The customer is not entitled to claim damages from us in these cases of force majeure. We shall only be entitled to avail ourselves of the above-mentioned circumstances if we inform the customer about them immediately.
This provision applies accordingly in the event of lockouts or strikes.
(5) In the event of delay in accepting performance, the customer has to indemnify us for the loss caused by this breach of contract, in particular for expenses incurred as a result of the storage of the goods. This does not apply if this breach of contract is not attributable to the customer. In this case the customer’s obligation to reimburse costs is limited to the expenses incurred by us due to the storage of the goods. After fixing an adequate time limit for accepting delivery but without success, we are further entitled to dispose otherwise of the goods and to supply the customer within a reasona-bly extended term.
The customer is obliged to effect payments by the agreed date for payment even if he is in default of acceptance. In so far as we dispose otherwise of the goods, the customer is no longer obliged to pay interest on the overdue accounts as of the date of such an otherwise disposal. However, we are not obliged to dispose otherwise of the goods.
Passing of the Risk/Shipment(1) If the delivery object is shipped to the customer upon his request, or if the handing over is done – as it normally is – ex works, the risk of accidental destruction or accidental deterioration of the merchandise passes to the customer together with the handing over to the person entrusted by us with the dispatch, but no later than when the merchandise leaves our works or warehouse; this risk passes irrespective of whether the dispatch took place from the place of performance or who bears the freight costs. If the merchandise is ready for shipment and the shipment or accepting delivery of the merchandise is delayed due to circumstances beyond our responsibility, the risk passes on to the customer upon his receiving our notice of readiness for shipment. We arrange for an insurance of the delivery objects only on the customer’s express request.
(2) Unless otherwise determined by the customer, the mode of shipment is at our discretion. We are under no obligation to use the cheapest mode of shipment. The packaging will be invoiced and not be taken back, unless stipulated otherwise by legal provisions, e.g. the “Verpackungsverordnung”, or unless otherwise agreed between the customer and us in a particular case.
(3) Samples, originals, and other objects provided by the customer will be stored in an appropriate manner. It is incumbent upon the customer to arrange for any theft, fire, water or other risk insurance; unless the customer entrusts us to effect a respective insurance the costs of which are to be born by the customer. The same applies accordingly if we store goods produced for the customer on his request.
Retention of Title
(1) Delivered goods shall remain our property until all outstanding debts resulting from the business relationship between us and the customer have been paid in full. The customer is entitled to resell the goods within his normal business.
(2) In the event of processing or combination of the delivered goods, the retention of title also applies to the new goods and we shall be considered as their manufacturer. If our merchandise is processed or connected with goods or equipment of third parties, we do not own, we will own the share of the joint property in the new object which is determined by the ratio of the invoice value between our merchandise and the other processed merchandise.
(3) If the delivery object is inseparably connected with other objects, we do not own, we will own the share of the joint property in the new object which is determined by the ratio of the value between the delivery object and the other combined goods at the time of their combination.
(4) The outstanding claims of the customer resulting from resale of the goods to a third party shall be considered to have already been assigned by the customer to us at his very moment in total or to the amount of our share of the joint property as security (cf. § 10 clause (2)); we hereby accept the assignment. The customer is entitled to collect these claims until we revoke this authorization or he stops payments. The customer is not entitled to assign these claims, not either in order to collect these debts by way of factoring unless the factor is obliged to transfer the collected amounts directly to us as long as we still have outstanding claims against the customer.
Upon our request the customer must give us the information necessary for collecting the assigned claims, including a copy of the contract with his customer, the invoice and a list of the payments received from his customer.
(5) The customer will advice us immediately of any compulsory execution measures levied by third parties against merchandise sold by us under retention of title, or against claims assigned to us in advance, and will forward to us the documents required for an intervention from our side.
(6) If the customer is in default with his payments twice within six months, or if the customer is insolvent or objective criteria indicate his insolvency, we shall be entitled, in the case of resale of the goods, to collect the assigned out-standing amounts directly from the customer’s customer. Our right to cancel the contract remains unaffected.
(7) At the request of the customer we are obliged to release the security to which we are entitled at our own discretion, should the value of such security exceed the claims to be secured by more than ten per cent.
(8) The customer holds the merchandise sold by us under retention of title for us. He must effect fire, theft and water insurance for it. The customer hereby assigns his claims for compensation against insurance companies and other persons or entities liable for compensation resulting from the kind of damages mentioned in sentence 2 to us to the amount of our respective claim. Should there be a prohibition of assignment, the customer guarantees, that the insurer expressly grants consent to the assignment.