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Terms and Conditions

Conditions for general deliveries and services by H. von Gimborn GmbH (hereinafter referred to as Gimborn)

1. Area of application, contractual partner, exclusive application
1.1 The following conditions shall apply exclusively to quotations and deliveries from Gimborn as far as the buyers involved are persons who, upon conclusion of the agreement, are acting in the exercise of their industrial or self-employed occupational activity (entrepreneur as defined by Article 14 BGB [German Civil Code], legal entities or special assets under public law.

1.2 Upon initial conclusion of the contract it shall be agreed between Gimborn and the buyer that the conditions shall also be an integral part of the contract for follow-up business (provided that this involves legal transactions of a related kind) - also including transactions that are concluded verbally or by phone.

1.3 Conditions of purchase and other conditions of the buyer will be opposed. They shall not become subject matter of the contract unless Gimborn expressly consents to this in the confirmation of order.

1.4 Special agreements and ancillary agreements agreed on before conclusion of the contract shall only become subject matter of the contract if they are included in the confirmation of order. Verbal ancillary agreements shall require the written form to take effect.

2. Offer, conclusion of contract
2.1 Unless marked otherwise, Gimborn’s offers presented in catalogues and other sales documents as well as on the Internet are always subject to confirmation, i.e. only to be understood as an invitation to submit an offer.

2.2 A contract shall be concluded following confirmation of order or delivery of the goods by Gimborn.

2.3 The following shall apply inasmuch as the application of these general terms and conditions already existed at the time of the conclusion of contract (for follow-up business as defined by number 1.2):

The buyer shall be bound to orders for three weeks. If the confirmation of order differs from the order, the buyer shall be obligated to immediately object to it in writing, however, not later than within 14 working days after the date of the confirmation of order. The contract shall otherwise be concluded under the conditions stated in the confirmation of order.

3. Prices, conditions of payment
3.1 The prices stated in this list shall apply subject to alterations in prices carried out in the meantime. Moreover, V.A.T. at the respective rate prescribed by legal regulations must be added. Items and prices that are not noted in the existing price list can also be affected by alterations. Gimborn therefore asks for a quotation to be requested.

3.2 2% discount is offered in the case of payment within 14 days provided that due items are not outstanding. 3% discount is offered for direct debit within 8 days. A deduction is not available for payments received within 30 days as from the date of the invoice.  In individual cases, among others deliveries to companies with whom Gimborn is not familiar, Gimborn reserves the right to make COD delivery.

3.3 Letters of credit shall only be opened on the part of the buyer following express agreement with Gimborn and via a bank approved by Gimborn. The letter of credit shall always be opened in compliance with the general customs and practice for documentary letters of credit, revision 1993, ICC publication no. 500, even if this is not expressly agreed in the individual case.

4. Default of payment
4.1 In the event that facts become known to Gimborn after conclusion of contract suggesting a significant reduction of assets according to best commercial judgement, or if the buyer is in default of payment for longer than 4 weeks or if he has a letter of credit that has been accepted by Gimborn or a cheque protested, Gimborn, irrespective of other rights, shall be entitled:

a) to pronounce all outstanding invoices as due for immediate payment,
b) to hold back all deliveries and services arising from contracts that have not yet been fulfilled if the buyer, in spite of having been requested to do so, is not willing to match payment with performance or to provide security,
c) to demand payment in advance,
d) or to withdraw from the contract.

4.2 In addition, Gimborn shall be entitled to demand default interest in the amount of 8 percentage points over and above the base lending rate as damage for delay. The right remains reserved to assert greater damages for delay.

5. Set-off, retention
The buyer shall only then be able to declare set-off against claims of Gimborn if the demand of the buyer is undisputed or has been legally established. A right to refuse performance or a right of retention can only then be asserted if his counterclaim is based on the same contractual relationship.

6. Delivery and delivery time, self-supply
6.1 Compliance with agreed delivery dates presupposes that necessary approvals, documents to be provided by the buyer, clearances, services to be rendered and other duties of the buyer are available or complied with on time. If this is not the case, the delivery date will extend by the period of the delay caused by the buyer. We reserve the right to the plea of lack of performance of the contract.

6.2 The delivery date is complied with if the ordered goods have left the factory/warehouse by the time it expires or readiness for shipment has been notified in cases where cooperation of the buyer is necessary for delivery.

6.3 The delivery date shall extend by a reasonable period – also within a delay – in the case of force majeure, strike, lock-out, intervention by national and international authorities as well as in the case of all unforeseen obstacles arising after conclusion of the contract and for which Gimborn is not responsible as far as obstacles of this kind demonstrably have a significant impact on the delivery of the sold products or services.
This shall also apply if these circumstances arise with the suppliers of Gimborn or their sub-suppliers. The buyer can ask for a declaration from Gimborn as to whether it will withdraw or make delivery within a reasonable time-limit. In the event that Gimborn does not make a declaration, the buyer is able to withdraw. Claims for damages shall be excluded in cases of this kind. The right of the buyer to withdraw after the fruitless expiry of a reasonable additional respite set by Gimborn shall remain unaffected.

6.4 In the event of default in respect of partial deliveries the buyer shall only then be entitled to withdraw from the entire contract if partial performance is of no interest to him.

6.5 As far as delivery is not possible, the buyer shall be entitled to demand compensation for damages, unless Gimborn is not responsible for the impossibility of performance. Inasmuch as impossibility of performance was not caused intentionally by Gimborn or due to gross negligence, the claim to compensation for damages by the buyer shall be restricted to 10% of the value of that part of the delivery or performance that cannot be put to appropriate use on account of the impossibility of performance.

6.6 Gimborn shall not be in default if an upstream supplier, with whom a matching cover transaction was concluded, does not perform at all, does not perform on time or does not perform correctly.

7. Passing of risk and acceptance
7.1 Delivery is made ex works/warehouse at the risk and for the account of the buyer ("ex works", Incoterms 2000).

7.2 The risk is passed to the buyer following acceptance of the goods and apart from that upon handing over of the goods to the carrier, namely also if partial deliveries are made or if Gimborn has taken on additional services, e.g. transport costs or delivery.

7.3 The buyer shall be obligated to accept the goods at the agreed place of delivery upon delivery, or otherwise within 8 days after receipt of the notification of readiness to make delivery. Any fees for lorry immobilisation time due to a delay in unloading and costs of return transport and new delivery shall be borne in cases of this kind by the buyer inasmuch as he is responsible for the delay.

7.4 If the buyer is in default of acceptance or if the delivery is delayed due to other circumstances for which he is responsible, the risk shall be passed to the buyer from this point in time; in addition, the purchase price shall become due for payment in cases of this kind. The buyer shall bear the costs for storage on Gimborn’s premises or on the premises of third parties. The right to assert a further claim against the buyer for compensation of damages shall not be affected by this.

8. Defects of quality
8.1 If a contractual product features a defect of quality within the warranty for defects period that already existed at the time of passing the risk, Gimborn shall at its own option and subject to a notice of defect in due time, remedy the default in quality free of charge or deliver replacement goods. In the case of faulty performance Gimborn shall improve the performance or provide it again. Gimborn shall always be given the opportunity to provide supplementary performance within a reasonable time-limit.

8.2 If supplementary performance fails, the buyer can – irrespective of any claims to compensation for damages – withdraw from the contract or reduce the remuneration.

8.3 A default in quality exists if the properties and condition of the contractual product or performance do not comply with the written agreements between Gimborn and the buyer. Features of the contractual product that the buyer expects following public statements by Gimborn, in particular in advertising, shall only then be part of the agreed properties and condition if they are repeated in the written agreement. In the event that a written agreement is missing, a default in quality shall only then exist if the contractual product or performance does not comply with the product data sheets, the features stated on the packaging and other product information provided by Gimborn.

8.4 Claims to default in quality by the buyer shall be excluded:
- for development samples, prototypes and pilot production deliveries
- in the case of a purely insignificant deviation from the agreed properties and condition, the product data sheets, the features stated on the packaging and other product information
- in the case of purely insignificant impairment of serviceability
- in the event of damages arising after transfer of risk as a result of outside influences such as fire, water, voltage fluctuations or similar, installation, operation, use or maintenance, utilisation outside the areas of application expressly specified by Gimborn, environmental conditions and use in combination with other products that are not approved by Gimborn for this purpose, excessive demands or normal wear

8.5 Warranty claims by the buyer shall presuppose that, according to Article 377 HGB (Commercial Code) he has duly complied with his obligations to examine and to make a complaint in respect of a defect immediately upon receipt of the goods.

8.6 Warranty claims shall become time-barred 12 months after delivery to the buyer, provided that a longer time-limit is not stringently prescribed by law.

8.7 During negotiations between the parties regarding the existence of rights of the buyer on account of an alleged defect, any suspension of the statute of limitation shall be restricted to the alleged defect. Negotiations with an inhibiting effect shall commence at the point in time Gimborn received the written description of the alleged defect. They end at the point in time Gimborn provided supplementary performance or supplementary performance of this kind failed, a contractual partner makes written notification of the breakdown in negotiations and apart from that 3 months after receipt by the other contractual partner of the last comments from a contractual partner in respect of the alleged defect.

8.8 Claims of the buyer on account of necessary expenditure for supplementary performance purposes, in particular costs for transport, infrastructure, labour and material, shall be excluded as far as the expenditure increases because a contractual product was subsequently moved to a location other than the place of delivery, unless the movement complies with its intended use.

8.9 If examination of the notice of defect shows that a defect does not exist, Gimborn shall charge for the costs of the examination and the repair if applicable at Gimborn’s respective valid cost rates; in this case the costs for forwarding the contractual product complained about shall not be reimbursed and the return consignment shall be for the buyer’s account and at his risk.

9. Industrial property rights; defects of title
9.1 Inasmuch as a third party, following the use of a contractual product according to the contract, lodges justified claims against the buyer on account of an infringement of a valid industrial property right in the country of the place of delivery (e.g. patent, copyright or trademark), Gimborn shall be liable as follows vis-á-vis the buyer within the time-limit specified in no. 8.6:
- At its own expense and option, Gimborn shall either provide the buyer with the right to continue to use the contractual product or replace or amend it in such a way that an infringement no longer exists. If Gimborn is not able to do this under reasonable conditions, the buyer is entitled to the legal rights of withdrawal or diminution. The buyer shall not be able to demand compensation for expenditure in vain.
- The liability for damages shall conform to no. 10.
- Gimborn’s preceding obligations shall only exist as far as the buyer informs Gimborn immediately in writing regarding the claims asserted by third parties and does not acknowledge an infringement of the rights of the third party to the extent that all defensive measures and settlement negotiations remain reserved for Gimborn. If the buyer suspends the use of the contractual product for reasons of mitigation of damages or other important reasons, he shall be obligated to advise the third party that the cessation of use does not constitute acknowledgement of a breach of the law.

9.2 Claims of the buyer against Gimborn shall be excluded as far as the buyer is responsible for the breach of the law.

9.3 Furthermore, claims of the buyer shall also be excluded as far as the infringement arises from compliance with product requirements of the buyer and as far as the infringement arises due to the alteration of contractual products, the combination of contractual products with additives or due to the use of contractual products or parts thereof in the execution of a process without the contractual products themselves infringing the industrial property right.

9.4 In addition, claims of the buyer shall be excluded for infringing acts that arise after the buyer was warned or gained knowledge of a possible infringement, unless Gimborn approved of further infringements in writing.

9.5 In the event of a claim according to no. 9 Gimborn shall be entitled to withdraw from the contract with regard to performance still outstanding.

9.6 The sale of the contractual products shall not grant a licence for the utilisation of Gimborn’s industrial property rights that relate to a combination of objects or processes, in which the contractual products are used or can be used.

9.7 The provisions of no. 8 shall apply appropriately if other defects of title exist.

9.8 Further claims of the buyer or claims other than those regulated in this no. 9 against Gimborn and its vicarious agents on account of a defect of title shall be excluded; this shall not apply in the case of wilful intent and gross negligence.

9.9 Similarly, the buyer shall be liable to Gimborn if claims arising from an alleged infringement of industrial property rights are asserted against Gimborn based on the fact that Gimborn followed instructions from the buyer or made product modifications on his behalf.

10. Liability
10.1 Claims of the buyer for compensation for damages and reimbursement of expenses (hereinafter referred to as claims for compensation for damages), irrespective of the cause in law, in particular on account of the breach of duties arising from a relationship under the law of obligations and a tortious act, shall be excluded. This shall not apply in cases of acceptance of a guarantee or a procurement risk. Furthermore, this shall also not apply as far as mandatory liability is involved, e.g. in accordance with the Product Liability Act, in cases of gross negligence, on account of death and injury to body or health as well as breach of important contractual obligations. However, the claim for compensation for damages for the breach of important contractual obligations shall be restricted to the damage foreseeable for this type of contract as far as there is not a liability due to gross negligence or on account of death and injury to body or health. This is not connected to a change in the burden of proof to the disadvantage of the buyer.

10.2 The same shall apply to Gimborn’s liability for vicarious agents and employees.

10.3 Claims of the buyer for compensation for damages shall become time-barred, as far as they arise from defects as to quality or defects of title, in accordance with no. 8.6, otherwise 2 years at the latest as from the point in time the claim came into existence and the buyer gained knowledge of the damage. However, irrespective of this knowledge, the claims for compensation for damages shall become time-barred 3 years at the latest from the point in time of the damaging event.
This shall not apply to liability on account of wilful intent, maliciously withheld defects, death and injury to body, health or freedom.

11. Reservation of title
11.1 The goods delivered shall remain the property of Gimborn as reserved goods until the purchase price is paid in full and all existing accounts receivable arising from the business relationship have been cleared. The allocation of individual accounts receivable to a current account or striking a balance and its acknowledgement shall not nullify the reservation of title.

11.2 The buyer shall be obligated for the term of the reservation of title to handle the object of sale carefully. As long as transfer of ownership has not yet taken place, the buyer must inform Gimborn immediately in writing if the object supplied is attached by way of execution or exposed to other interference by third parties. As far as the third party is not in a position to reimburse Gimborn for the costs of a lawsuit according to Article 771 ZPO (Code of Civil Procedure), the buyer shall be liable vis-á-vis Gimborn for this.

11.3 The reserved property shall be held in trust by the buyer on Gimborn’s behalf, shall be marked by the buyer as such and stored separately. If the reserved goods are compounded inseparably, processed or mixed with other objects that are not in Gimborn’s possession, Gimborn shall acquire co-ownership of the new object at the ratio of the objective value of the reserved goods to the other compounded objects at the point in time of compounding. If compounding is carried out in such a way that the other object is to be regarded as the main object, it shall be deemed as agreed that the buyer shall transfer co-ownership to Gimborn on a pro rata basis. The buyer shall hold in safe custody on behalf of Gimborn the sole ownership or co-ownership that came into existence in this way.

11.4 The buyer shall be entitled to resale in the normal course of business. He shall already now assign to Gimborn all accounts receivable and claims to remuneration to which he is entitled from resale or another cause in law in respect of the reserved goods (e.g. from a tortious act, insurance claims) in the invoice amount of the reserved goods. This assignment shall apply irrespective of whether the reserved goods were sold without or after processing/compounding. The buyer shall be entitled to collect the assigned accounts receivable in his own name. The buyer shall separate the monies collected in this respect from his own assets and the assets of third parties until full payment has been paid.

11.5 Gimborn shall be able to revoke the authorisation of resale and the collection authorisation, if one of the events identified in no. 4.1 should occur in respect of the buyer or if a petition in bankruptcy is made regarding the assets of the buyer. In this case the buyer shall be obligated to advise Gimborn of the garnishees and the respective accounts receivable and to provide all necessary documents for collecting the accounts receivable.

11.6 In the case of interference in the reserved goods by third parties the buyer must make reference to Gimborn’s proprietorship and inform Gimborn immediately in writing, attaching the bailiff’s return if available. If notification remains undone, the buyer shall be liable for the damages incurred by Gimborn as a result of this.

11.7 Gimborn shall undertake to release the securities to which Gimborn is entitled insofar as their value exceeds the accounts receivable to be secured by more than 20% and as far as they have not yet been settled. As far as the value of the reserved goods is applied, this shall arise from Gimborn’s invoice amount (invoice value).

12. Miscellaneous
12.1 If Gimborn agrees to accept the return of shipments that were part of a firm order, Gimborn shall be entitled to deduct 10% from the credit note for arising expenses.

12.2 Oral ancillary agreements shall not become an integral part of the contract. Supplements and amendments to the contract shall require the written form to take effect. This shall also apply to waiving this written form requirement.

12.3 In the event that Gimborn does not exercise a right arising from this contract, this shall not constitute relinquishment of future assertion of this right.

12.4 The assignment of rights and claims, with the exception of the assignment of claims to payment, shall require the prior written consent of the contractual partner.

12.5 If a provision of these conditions or part of a provision is or becomes invalid, the remaining provisions or the remaining part of the provision shall remain valid. The parties shall undertake to implement a legally admissible provision instead of the invalid provision that comes as close as possible to the economic purpose of the invalid provision.

12.6 This contract and the entire legal relations of the parties shall be subject to the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods.

12.7 Subject to an alternative exclusive place of jurisdiction, Emmerich shall be agreed as the place of jurisdiction as far as the buyer is a businessman, a corporate body under public law or special assets under public law. Gimborn, however, shall remain entitled to institute legal proceedings at the place of business of the buyer.

Status: November 2009

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