Terms

General Terms of Delivery and Payment

§ 1 Scope of Application
(1)  The following Terms and Conditions as in effect at the respective time shall be applicable exclusively to any and all supply contracts, agreements and offers within the scope of ordinary business transactions even if in future instances we should not expressly make reference to the applicability thereof. By placing an order for or accepting delivery of any goods or services the Customer shall accept the applicability and effectiveness of these Terms and Conditions.
(2)  These Terms and Conditions shall also, and most particularly, be applicable in the event that the Customer communicates, or submits in written form, his own terms and conditions which may vary from ours. Such Customer’s terms shall not become part of the Contract unless expressly agreed by us or any agent acting on our behalf.
(3)  Any modifications of or amendments to these Terms and Conditions shall be agreed in writing. This shall also apply to the written form requirement itself.
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§ 2 Conclusion of Contract
(1)  Should our Contract confirmation vary from any oral order placement or understanding, the written Contract confirmation shall be deemed contractually agreed unless written objection is lodged within five working days.
(2)  We reserve the right of ownership and the copyright of any data, illustrations, drawings, calculations or other documents that we have put at the Customer’s disposal. These data and/or documents shall not be disclosed to or duplicated for any third parties unless expressly approved by us.
(3)  The Customer shall observe any third-party proprietary rights or copyrights. Should such third party raise any claims [arising from such rights] against us, the Customer shall at our request indemnify us against any and all claims or pay compensation for any costs already incurred.
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§ 3 Prices /Payment
(1)  Agreed prices are net prices, with applicable VAT payable in addition. Unless otherwise agreed, the prices are ex works. Billing and payment is in euro currency. Any additional costs incurred due to payment in foreign currency shall be borne by the Customer.
(2)  Any circumstances arising four months after Contract conclusion which impact the bases of our calculations in a material and unforeseeable way and which are beyond the Seller’s control shall justify us to adjust the agreed prices by an amount exclusively accounted for by these circumstances. This provision applies most particularly to legislative changes, dispositions by governmental agencies, etcetera. The price so adjusted shall be calculated on the same basis as the price originally agreed and shall not serve to increase the profit.
(3)  Terms of payment for amounts invoiced shall be net thirty (30) days from date of invoice. Payment within ten (10) days after invoice date shall authorize the Customer to deduct a two per cent (2%) discount. The value date indicated on our business account shall be relevant for due date compliance.
(4)  The Customer shall pay interest on arrears in the amount of 8 percentage points above the base lending rate. We expressly reserve the right to claim additional damages for default.
(5)  Cheques shall only be accepted on account of performance; likewise, bills of exchange shall only be accepted on account of performance and provided that such type of payment is based on a specific agreement.
(6)  The Customer shall not be authorised to exercise any right of retention or set-off unless his claims are undisputed or have been recognised by declaratory judgement.
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§ 4 Term for Delivery
(1)  An agreed Term for Delivery is deemed to be met if upon expiration of such term the Ordered Products have left our warehouse, or the manufacturer’s works if the Products are shipped ex works, or readiness for shipment has been notified.
(2)  Failing any acts to be performed or preconditions to be met by the Customer in order for us to be able to supply our Products or render our Services, the Term for Delivery shall be extended by the respective period of time. Should this happen, new Terms for Delivery have to be agreed.
(3)  Should we be unable to meet our contractual obligations due to any circumstances attributable to force majeure that were not foreseeable at the time of Contract conclusion - such as labour disputes, strikes, lock-outs, unpredictable stoppage or inevitable raw material shortages and other circumstances for which we cannot be held responsible – we shall be released from our contractual obligations as long as these circumstances persist. Any agreed Terms for Delivery shall be extended by the duration of such stoppage. The Customer shall have no right to claim damages for any circumstances of the type specified above. Likewise, the Customer’s contractual obligations shall remain suspended as long as the stoppage continues. We shall promptly inform the Customer about the onset and end of any circumstances of force majeure in terms of this provision, and we shall furnish evidence that we cannot be held liable for the situation and shall do so no later than six months after the end of the stoppage. This is without prejudice to the Parties’ right to withdraw from the Contract pursuant to existing statutory provisions.
(4)  Paragraph (3) shall not apply if we are found at fault as regards any takeover or precautionary measures or damage control.
(5)  If our performance is delayed due to any circumstances attributable to the Customer, the latter shall be liable to pay compensation for any additional costs that we may have to incur.
(6)  If the Customer negligently refuses acceptance of the Products, he shall be liable to pay damages to us in the amount of 0.1% per working day of the net order volume total. His total liability to pay damages shall be limited to 10% of the net order volume total. We expressly reserve the right to claim damages in excess thereof. The Customer shall be expressly authorized to furnish evidence that the actual damage caused is lower than what has been claimed.
(7)  If after Contract conclusion the Customer specifies any place for delivery other than the place originally agreed, he shall bear the additional costs attributable to such change, including additional transport and warehousing costs.
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§ 5 Passing of Risk / Shipment
(1)  The price risk shall pass to the Customer as soon as the Products have been handed over to the person entrusted with shipping.
(2)  Upon request by the Customer we shall insure the Products against theft, breakage, damage in transit, fire and water damage and any other insurable risks. The respective costs shall be borne by the Customer.
(3)  Partial deliveries shall be allowed unless the Customer cannot be reasonably expected to tolerate them.
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§ 6 Reservation of Ownership
(1)  We reserve the ownership of the Delivered Product up to the date of payment of any and all receivables due to us by the Customer on account of the entire business relation with the latter. The reservation of ownership also includes the recognised account balance to the extent we book receivables due to us by the Customer in our current account.
(2)  In the event of breach of Contract by the Customer, including default of payment, we shall be authorised to take the Delivered Product back; the Customer shall be under an obligation to surrender the Delivered Product. Unless expressly stated by us in writing, our taking-back shall not constitute any revocation of the Contract provided that the German Civil Code [BGB] does not provide otherwise. Any pledging of the Product shall consistently constitute the revocation of the Contract. The Customer shall be under an obligation to promptly inform us in writing about any pledging or other encumbrance of the Delivered Product by any third party in order to enable us to file suit pursuant to Article 771 ZPO. If we cannot recover our judicial and extra-judicial costs of the law suit from such third party pursuant to Art. 771 ZPO, then such third party shall be liable for the loss sustained by us.
(3)  The Customer shall be authorised to sell the Delivered Product in the ordinary course of his business; at this point the Customer already cedes to us any and all receivables in the amount of the invoice total (including VAT) which are due to him by his customer or any third party on account of the sale of the Product of which the ownership has been retained, and to do so irrespective of whether or not the Delivered Product was sold before or after the agreement. The Customer is authorised to collect such receivables despite their having been ceded. We are authorised to collect such receivables ourselves; however, we undertake and promise not to collect any receivables as long as the Customer meets his payment obligations and is not in default. Should the Customer be defaulting, we shall be authorised to request the Customer to disclose the receivables that have been ceded to us as well as the respective debtors, to furnish the details and the respective documents required for collecting the money, and to inform the creditors (third parties) about the cession.
(4)  If the Delivered Product is firmly connected with or integrated into other products that are not owned by us we shall be deemed co-proprietors of the new item, with the ratio of such joint property reflecting the value of the Delivered Product as percentage of the new item at the time the connection or integration was made. If the connection or integration is such that the Customer’s product constitutes the principal component, it is atng understood that the Customer transfers property to us on a pro rata basis.
(5)  The Customer shall hold our exclusive or joint property in safe custody on behalf of us. To collateralise the receivables due to us by the Customer, the latter shall also cede to us such part of the receivables due to him by a third party that reflects the Customer’s input into the new item which is a connection or composition of the Delivered Product with the Customer-manufactured product.
(6)  The Customer can request the retained ownership title to be unfreezed once the collateral securities are in excess of 110% of the realisable value. Likewise, the Customer can request unfreezing of the retained title if the estimated value of the goods ceded as a guarantee is 150% of the receivables secured.
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§ 7 Customer’s Rights in the Presence of Defects
(1)  The Customer shall be under an obligation to inspect the Products promptly upon delivery and to notify in writing any defects detected. Defects shall not be recognised unless notified prior to the expiration of five days after Product delivery. Hidden defects shall be notified in writing to us promptly upon detection but no later than five days after detection. Such term shall be deemed met if communication is by fax, with the original letter following immediately afterwards. Notification of the defect is to be addressed directly and exclusively to us. The Customer undertakes to keep the defective Products, or the respective parts thereof, unmodified available for inspection by us.
(2)  If a defect in the supplied Product has been notified within due time, we shall at our discretion remedy the defect or substitute the Product. If remedy is either not reasonable or if it fails, the Customer shall be at option to either have the purchase price reduced or to rescind the Contract.
(3)   The Customer’s right to make a claim under warranty shall become statute-barred 12 months after delivery of the Product. During that term, the Customer shall comply with the instructions given by us for storing the Product in order to keep the Product in the best condition possible.
(4)  Any parts replaced by us within the scope of remedial performance shall become our property.
(5)  The Customer shall give us reasonable opportunity to perform any remedial measures that may be required. Upon default by the Customer in that respect we shall not adopt any further liability for any additional damage occasioned after the default date.
(6)  We shall not be held liable for any damage caused by the defectiveness of the Product unless such damage was caused by grossly negligent breach of obligations on our part or by our legal representatives or vicarious agents. We shall not be liable for the workability of the Product if such workability is attributable to any specification commissioned by the Customer.
(7)  The above restriction shall expressly not apply if we are liable to pay damages for any person’s death or impairment of his physical integrity or health caused by culpable breach of obligations on our part or by our legal representatives or vicarious agents.
(8)  To the extent that we have warranted particular characteristics of the Product sold by us for the duration of a specified period of time, the above paragraphs (1), (2), (3) and (6) shall not apply.
(9)  The above provisions shall not prejudice any claims under the German Product Liability Act [Produkthaftungsgesetz].
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§ 8 Non-Liability Clause / Restriction of Liability
(1)  The Customer shall not be entitled to any other claims for damages of whatever kind, including but not limited to claims on account of culpa in contrahendo or breach of collateral contractual or statutory obligations, unless such damages are attributable to at least grossly negligent breach of obligations by us or our legal representatives or vicarious agents.
(2)  The restriction stated in the above paragraph shall not apply to foreseeable damages due to breach of contractual obligations. However, we shall be liable only to the extent that such damages were foreseeable at the time of Contract conclusion. We shall not be held liable for any non-foreseeable excess damages.
(3)  Moreover, the above restriction shall expressly not apply if we are liable to pay damages for any person’s death or impairment of his physical integrity or health caused by culpable breach of obligations on our part or by our legal representatives or vicarious agents.
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§ 9 Revocation of Contract
(1)  We shall have the right to withdraw from the Contract if, after Contract conclusion, material conditions relating to the performance of the Contract have developed in a way that is beyond our control and that makes it impossible or unreasonably difficult for us to perform the Contract (e.g. sub-contractors’ non-performance, or performance materially hampered, due to reasons not attributable to us).
(2)  We shall also have the right to withdraw from the Contract if the Customer materially fails to comply with his contractual obligations, including his duty to exercise due care in handling the Product supplied to him under reservation of title.
(3)  We shall also have the right to withdraw from the Contract if the Customer makes incorrect representations as regards his credit standing. This provision shall apply most particularly in the event that the Customer is objectively not creditworthy and, accordingly, our claims for payment appear jeopardized. The same shall apply if the Customer has sworn an affidavit.
(4)  Subject to the aforesaid, our right and the Customer’s right to revoke the Contract shall be governed by the statutory provisions.
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§ 10 Applicable Law / Venue
(1)  The contractual relationship between the Parties shall be governed exclusively by German law. The UN Convention on Contracts for the International Sales of Goods shall not be applicable.
(2)  The venue for any and all disputes arising from or in connection with this Contract shall be Göttingen.
(3)  The venue shall be as specified in paragraph (2) if, once a dispute has arisen, the Parties have reached agreement accordingly. Moreover, it is hereby understood by and between the Parties that if the Customer relocates his permanent or habitual residence to a place that is not within the jurisdiction of the German Code of Civil Procedure, or if his permanent or habitual residence is unknown at the time an action is brought, the venue shall also be Göttingen.
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§ 11 Place of PerformanceThe Place of Performance for any and all claims arising from this Contract shall be the city of Gleichen.		  

 

Kappa optronics Inc.Terms and Condition of Sales

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