General Terms and Conditions of Sale

Clause 1 General Information - Scope

  1. Our Terms and Conditions of Sale shall apply exclusively. We shall object to any terms and conditions that diverge from our Terms and Conditions of Sale unless we have given our express written consent to their applicability. Our Terms and Conditions of Sale shall also apply in cases in which we, in full cognizance of the Customer's terms and conditions that conflict with, or diverge from, our Terms and Conditions of Sale, carry out delivery to the Customer without reservation.
  2. All agreements made between us and the Customer for the purpose of executing this contract shall be set out in writing in this contract. This shall also apply to conclusion, amendment or termination of contracts.
  3. Our Terms and Conditions of Sale shall apply only in relation to entrepreneurs within the meaning of section 310(1) of the Bürgerliches Gesetzbuch (German Civil Code - BGB).
  4. Our Terms and Conditions of Sale shall also apply to all future business transactions with the Customer.

Clause 2 Offer

Unless otherwise stated in the order confirmation, our offer shall be subject to change.

Clause 3 Terms of Payment

  1. Unless otherwise stated in the order confirmation, our prices shall apply "ex works", exclusive of packaging; packaging shall be charged separately.
  2. Statutory value-added tax shall not be included in our prices. It shall be shown separately on the invoice.
  3. Invoices shall fall due immediately. Any claim to payment targets shall require a special agreement.
  4. The Customer shall be entitled to set-off rights only if its counterclaims are legally established, uncontested or have been acknowledged by us. Furthermore, it shall be entitled to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.

Clause 4 Customer's Co-operation

  1. Compliance with our delivery obligation shall also be contingent upon the timely and appropriate fulfilment of the Customer's obligation. We reserve the right to claim the defence of non-performance of contract.
  2. If the Customer culpably breaches the duties to co-operate incumbent upon it, we shall be entitled to demand compensation for any damage or loss incurred in this respect, including any additional expenses. We reserve the right to assert further claims.
  3. We shall be liable in accordance with the statutory regulations if delayed delivery is due to a wilful or grossly negligent breach of contract for which we are responsible. Any fault of our representatives or performing agents shall be attributed to us. If the delayed delivery is not due to a wilful breach of contract for which we are responsible, our liability for damages shall be limited to damages that are foreseeable and that typically occur. 
  4. We shall be liable in accordance with the statutory regulations if the delayed delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in such cases, however, our liability for damages shall be limited to damages that are foreseeable and that typically occur.

Clause 5 Transfer of Risk

Unless otherwise stated in the order confirmation, delivery "ex works" shall be deemed to have been agreed.

Clause 6 Liability for Defects

  1. The Customer's claims for defects shall be conditional upon its having properly complied with its inspection and notification obligations required under section 377 of the Handelsgesetzbuch (German Commercial Code - HGB).
  2. The Customer shall have the statutory warranty rights unless they are excluded or limited below.
  3. We shall be liable in accordance with the statutory regulations if the Customer asserts claims for damages based on wilful intent or gross negligence, including wilful intent and gross negligence on the part of our representatives or performing agents. Where no accusation of wilful breach of contract is made against us, liability for damages shall be limited to damages that are foreseeable and that typically occur.
  4. We shall be liable in accordance with the statutory regulations if we are in culpable breach of a material contractual obligation. In such cases, however, liability for damages shall be limited to damages that are foreseeable and that typically occur.
  5. Where the Customer is entitled  to damages in lieu of performance, our liability shall be limited, also within the scope of paragraph (3), to compensation for damages that are foreseeable and that typically occur.
  6. Liability on account of culpable injury to life, limb and health shall remain unaffected; this shall also apply to strict liability pursuant to the Produkthaftungsgesetz (German Product Liability Act).

Clause 7 Total Liability

  1. Any further liability for damages than is provided for in Clause 6 shall be excluded, irrespective of the legal nature of the claim asserted. This shall apply, in particular, to claims for damages on account of fault at the time the contract is formed, on account of other derelictions of duty or on account of claims in tort for compensation of material damage pursuant to Section 823 of the BGB.
  2. The limitation in accordance with paragraph 1 shall also apply if the Customer, rather than claiming damages in lieu of performance, demands compensation for nugatory expenses.
  3. Any exclusion or limitation of liability in relation to us shall also apply in respect of the personal liability for damages on the part of our employees, servants, agents and contractors.

Clause 8 Retention of Title

  1. We shall retain ownership of the object of sale until all payments arising from the existing current account relationship (business relationship) with the Customer have been made; the retention shall apply to the recognised balance. If the Customer behaves in a manner that is in breach of the contract, in particular if it defaults on payment, we shall be entitled to repossess the object of sale. The act of repossessing the object of sale shall not constitute rescission of the contract. After repossessing the object of sale, we shall be entitled to liquidate it, with the liquidation proceeds being offset, less liquidation costs, against the Customer's liabilities.
  2. In the event of seizures or other third-party interventions, the Customer must notify us in writing without delay to enable us to bring an action pursuant to section 771 of the Zivilprozessordnung (German Code of Civil Procedure - ZPO). Where the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to section 771 of the ZPO, the Customer shall be liable for any expenses that we incur.
  3. The Customer shall be entitled to sell on the object of sale in its ordinary course of business; however, it shall hereby assign to us all claims in the amount of the final invoice (including value-added tax) of our receivable arising to it, against its customers or third parties, from the onward sale, irrespective of whether the object of sale has been sold on without or after processing. The Customer shall continue to be authorised to collect this receivable even after the assignment. This shall not affect our entitlement to collect the receivable ourselves. We shall, however, undertake not to collect the receivable for as long as the Customer complies with its payment obligations arising from the proceeds collected, does not default on payment and, in particular, no petition to institute settlement or insolvency proceedings has been filed and there is no cessation of payments. However, if this is the case, we may demand that the Customer make known to us the assigned receivables and their debtors, make all disclosures required for the collection, surrender the corresponding documents and inform the debtors (third parties) of the assignment.
  4. Any processing or alteration of the object of sale by the Customer shall always be undertaken on our behalf. If the object of sale is processed with other objects that do not belong to us, we shall acquire co-ownership of the new object in proportion to the value of the object of sale (final invoice amount, including value-added tax) in relation to the other processed objects at the time of processing. In other respects, the same shall apply to the object that arises due to processing as to the object of sale supplied subject to retention of title. If our ownership extinguishes as a result of combination, mixing or processing, the buyer shall hereby transfer to us its ownership rights or contingent rights to the new stock or object in proportion to the invoice value of the goods subject to retention of title in relation to the invoice value of the other goods used and shall preserve them for us free of charge.
  5. We shall, at the Customer's request, undertake to release the collateral to which we are entitled insofar as the realisable value of our collateral exceeds the receivables to be collateralised by more than 10%; the selection of the collateral to be released shall be at our discretion.

Clause 9 Final Provisions

  1. Where the Customer is a merchant, our business domicile in Hellenthal shall be the legal venue. We shall, however, also be entitled to sue the Customer at its general legal venue.
  2. The law of the Federal Republic of Germany shall apply;  the applicability of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
  3. Unless otherwise stated in the order confirmation, our business domicile in Hellenthal shall be the place of performance.


Schoeller Werk GmbH & Co. KG

As of 04/2006