GENERAL TERMS AND CONDITIONS
AS OF SEPTEMBER 2010
1.1. All business dealings shall be governed by the following General Terms and Conditions exclusively; as far as they do not contain any provisions, the statutory rules shall apply; Customer’s terms to the contrary to or deviating from our terms and conditions to our detriment shall be valid only if expressly confirmed by us in writing. Our General Terms and Conditions shall also apply if we are aware of Customer’s terms to the contrary to or deviating from our terms to our detriment but unconditionally effect delivery to the Customer.
1.2. Our terms and conditions shall also apply for future business with the Customer.
1.3. Our General Terms and Conditions shall only apply with respect to traders, juristic persons under public law or public utility funds as defined by para. 310 cl. 1 BGB (German Civil Code).
2. Contract Conclusion, Subsequent Changes of Contents
2.1. Our offers are subject to change without notice.
2.2. We reserve the right to amend the goods in the following manner even after conclusion of contract , if this is acceptable for the Customer:
- product changes relating to permanent product advancement and product improvement;
- minor and insignificant variations relating to colour, form, design, measures, weights or quantities;
- deviations customary in the trade.
2.3. If, during contract conclusion, errors occur which are not due to our fault, e.g. due to errors in communication, misunderstandings etc, no claims for damages pursuant to Article 122 BGB (German Civil Code) may be asserted against us.
2.4. The conclusion of this Contract is subject to the reservation that we have timely been provided with the correct products by our suppliers. This, however, shall only apply, if any failure of delivery to us is not within our responsibility, especially in case that we conclude another contract for the delivery of products at stake (Contract for Congruent Coverage = kongruentes Deckungsgeschäft) with our supplier. Customer will be informed of the non-availability of performance immediately. Any payments already made by Customer shall be paid back immediately. We shall submit to Customer the Contract for congruent coverage immediately and assign to him any and all of our rights resulting therefrom, as far as necessary.
2.5. We do not grant any guarantee, especially no guarantee with regard to the quality of the products nor their procurement, without explicit agreement to do so.
3. Prices, Supply of Precious Metals, Payment, Delay in Payment, Offsetting and Right of Retention of the Customer
3.1. We reserve the right to reasonably change our prices, if cost reductions or increases occur after the conclusion of this Contract, which are beyond our responsibility, especially due to changes of raw material prices or due to mandatory increases of wages of our staff, e.g. after mandatory trade union wage agreements. We shall prove such occurrences to Customer upon his request.
3.2. Precious metal is being invoiced on the calculation basis as agreed upon from time to time. If no such agreement is made, precious metal is going to be invoiced on the calculation basis of the WIELAND-quotation (a.m.) valid at the date of delivery or date of invoice respectively.
3.3. Prices only apply for the respective order. Repeat orders are deemed to be new orders.
3.4. Unless otherwise agreed upon, our prices are ex works and do not include postage, freight, packaging, insurance and other ancillary costs. In addition to this, the legally prescribed VAT shall be charged.
3.5. If payment is not effected within 10 days after the due date of payment and recept of our invoice, Customer shall be deemed to be in delay in payment under the statutory rules of Delay in Payment of the German Civil Code without any further notices from us. Payment shall only be deemed to have been received, if and when we are definitely in a position to dispose of the full amount. Otherwise the statutory provisions on delay in payment shall apply.
3.6. Bills of exchange and cheques shall only be accepted in lieu of payment. Bills of exchange shall only be accepted subject to prior written agreement. Any discount charges, fees as well as any and all costs relating to collection of the amount payable by either cheque or bill of exchange shall be borne by the Customer and shall be payable immediately. Cheques or bills of exchange shall only be regarded as received when the funds have been credited to our account and we have been released from any liability under the bill of exchange.
3.7. The Customer may set off only such claims as are undisputed or unappealable. Moreover, if and as far as we are liable for a breach of contract pursuant to § 276 BGB (German Civil Code) Customer shall be entitled to a right of retention or of plea of non-performance.
3.8. In case of business done according to the ‘facon principle’ the Customer undertakes – depending on the agreement entered into with us – either to supply the agreed upon quantity of precious metal at his own risk and for his own account immediately following contract conclusion or to effect payment within eight days upon receipt of our precious metal invoice. The precious metal will be invoiced according to the calculation mode agreed upon. Without such specific agreement, pricing of precious metal shall be based on the price quoted by WIELAND on the day the order is received (a.m.).
Upon receipt we shall acquire ownership of all precious metal delivered to us and it shall be credited to the Customer in grams to the metal account.
Customer´s obligation to deliver the quantity of precious metal agreed upon or to pay the respective precious metal invoice are of the essence and a main contractual obligation within the mutual contractual obligations. In case of delay in payment, no. 3.5. hereof shall apply. In case of delay in delivery of precious metal the statutory provisions shall apply.
If we decide to execute the order in spite of a delay in delivery or a delay in payment of the Customer we shall – without prejudice to any additional claims we may have under the law – have the right to charge to the Customer the quantity of precious metal agreed upon based on the price quoted by WIELAND quotation the day we received the order (a.m.), plus interest starting the day upon which Customer is in delay in delivery and plus an extra charge amounting to 10 % of the value of the precious metal; however, the Customer shall have the right to submit evidence to us proving that such interest and extra charge are not justified at all or only to a lesser amount.
3.9. We maintain a precious metal account when doing business with precious metal. The actual precious metal stock is not kept separately for each owner of account. The individual owners of account constitute a community of owners managed by us. Each owner of account is co-owner of the existing quantity in stock in proportion of the quantity of precious metal booked in his account. Upon purchase or sale of precious metal, transfer of title shall be deemed executed when the purchase or sale is booked into the account.
4. Transformations, Disposal
4.1. Customer shall inform us prior to the conclusion of the contract in writing about hazardous quality – e.g. toxic, corrosive, explosive, inflammable or radioactive material – or hazardous or interfering components – e.g. chlorine, bromine, mercury, arsenic, selenium, tellurium etc.- of the material delivered to us for transformation or disposal.
Delivery of hazardous material to be processed/ transformed or taking of delivery of material with hazardous or interfering component (e.g.) can be effected only after prior written co-ordination. The material to be processed or to be transformed shall be properly packed, comply with our packaging instructions, if any, and shall be labelled in accordance with statutory provisions and in accordance with the package contents.
4.2. If, due to incorrect, inaccurate information or labelling or due to a lack of information or labelling, transformation or disposal is not feasible or not correctly feasible without any circumstance within our responsibility having influenced transformation or disposal, we shall still have a claim for compensation of transformation/ disposal services within the terms of Art. 645 BGB (German Civil Code). Any further liability of Customer based on a faulty breach of the obligations contained in no. 4.1. above remains unaffected.
4.3. Customer bears risk and costs for transportation to our premises in Pforzheim, even if we provide means of transportation.
4.4. Our precious metal statement of account is made on the basis of the weight we measure before transformation/ disposal (or as the case may be, the weight after homogenizing or melting) and according to the content we state in our laboratories after sampling. Such statement is binding, if Customer does not object in writing within two weeks after its receipt. We shall especially emphasize this consequence in our statement. During this delay we shall store probes for reference. After sampling and statement of account we shall be entitled to proceed with the transformation / disposal of the material.
4.5. We reserve the right to increase costs for processing and transformation as well as the right to lengthen agreed upon processing times (times for delivery / purchase) in such cases, where specific qualities of the material, which despite usual care were unknown to us at the time of invoicing within the terms of no. 4.4. above, require additional costs. We shall substantiate proof hereof to Customer upon his request.
4.6. When rendering account within the terms of no. 4.4. above, we are entitled to set off the value of the metal to be delivered to Customer after transformation/ disposal against invoices for transformation / disposal, on the basis of the precious metal value according to the WIELAND-quotation valid at the date of invoicing (a.m.), unless otherwise agreed upon from time to time.
4.7. Customer bears costs (including costs for packaging) and risk of loss regarding transport to Customer.
4.8. Customer transfers title to the goods delivered to us for transformation/ disposal upon their delivery to us, or, if he is not owner, the expectancy of title. We transform the goods as producer within the meaning of § 950 BGB (German Civil Code).
5. Delivery / Obstacles to Delivery / Delay in Delivery/ Impossibility
5.1. Delivery dates indicated by us are not binding unless expressly stipulated to be binding.
5.2. Delivery dates shall only be complied with on condition that
- the Customer observes in due time all and any of his obligations to co-operate, especially with respect to the receipt of documentation and information to be supplied by the Customer,
- clarification of all technical details with Customer
- the receipt of down payments which may have been agreed upon, if applicable,
- in case of business done under the ‘facon principle’, – depending on the agreement entered into – the supply of precious metals agreed upon or the payment of the respective precious metal invoice
- and the submission of administrative permits and import licences to be made available
We reserve the right to plead non-performance of the contract.
5.3. Delivery dates shall be deemed to have been observed when the goods are delivered “ex works” within the stipulated term or if, in case picking up by Customer is agreed upon, our readiness to dispatch the goods has been notified to the Customer within such term.
5.4. Obstacles to our Performance beyond our responsibility:
5.4.1. Delays in Delivery or Performance due to the following causes shall not be within our responsibility unless we exceptionally assumed the risk or granted a guarantee specifically with regard to the date of delivery/ performance or any other delay- the same shall apply if such circumstances occur at our suppliers or their sub-suppliers:
- circumstances of ‘Force Majeure’ as well as any other obstacleswhich occur after conclusion of the Contract and we learn only after the conclusion of the Contract for no fault attributable to us, and
- with regard to which we prove that they could not have been foreseen and avoided by us even with the application of the utmost, reasonable care, and that we have no obligation to bear the risk of the occurrence of such obstacles or to actively or passively avoid them.
Provided that the above conditions are fulfilled – occurrence or faultless learning of such circumstances only after conclusion of the Contract, unforeseen and unavoidable occurrence to be proven by us – the above exclusion of responsibility especially, but without limitation includes: legitimate measures of labour struggle (strikes and legal lock-outs); operating trouble and breakdowns; shortage or lack of raw material; shortage or lack of manufacturing supplies; lack of personnel.
5.4.2. In the event of delays in delivery or performance under no. 5.4.1 above, any claims for damage of the Customer are excluded.
5.4.3. In the event of a definitive obstacle to delivery or performance within the meaning of no. 5.4.1. above, either party is entitled to immediately rescind the Contract.
5.4.4. In the event of a temporary obstacle to delivery or performance within the meaning of no. 5.4.1., we shall be entitled to postpone delivery/ performance for as long as the disturbance may last, plus a reasonable start-up time. If, in this respect, we can prove an intolerable impediment to delivery/ performance within the meaning of Article 275 clause 2 and 3 BGB (German Civil Code), we shall have the right to rescind this Contract.
Customer, however, in such circumstances shall have the right to rescission only under the conditions set out in no. 5.6. below.
Article 323 clause 4 BGB (German Civil Code) analogously applies to our right to rescind the Contract. With regard to the Customers right to rescind the Contract, Article 323 clauses 4 to 6 BGB (German Civil Code) apply.
As for the legal consequences of a valid rescission, Article 326 BGB including its referrals apply analogously; Customer may, in accordance with Articles 346-348 BGB (German Civil Code), request anullation of performances he may already have made before their being due.
5.5. Delays in Performance within our responsibility:
We shall be liable for delay in performance within our responsibility in accordance with the applicable statutory provisions but, however, subject to the following limitation
5.5.1. Liability for damage due to delay in performance subject to Articles 280 clause 2 and 286 BGB (German Civil Code)
Unless there is intentional acting or gross negligence attributable to us, our agents or our representatives, damage for delay in performance shall be limited to the lump sum of 0, 5 % of the net invoice amount of the service/ delivery at stake for each full week of delay, but in no event more than 5 % of such amount altogether. In case of gross negligence attributable to us, our agents or our representatives, our liability for damage for delay in performance shall be limited to the foreseeable damage specific for the type of Contract.
5.5.2. Liability for damage instead of performance subject to Article 281 BGB (German Civil Code) is limited to the foreseeable damage specific for the type of Contract, unless our delay in performance is caused by an intentional or grossly negligent breach of Contract by us, our legal representatives or agents.
5.5.3. The above limitations of liability shall not apply
- as far as the Customer contractually has declared that his continuing interest in our performance is linked to and depending on timely delivery / performance by us (transaction where time is of the essence – “Fixgeschäft”) and/ or,
- if we exceptionally have assumed the risk of timely delivery or granted a guarantee specifically with regard to the date of delivery/ performance
- in case of damage to life, body or health of a person.
5.6. If we prove that the delay is beyond our contractual responsibility, the Customer shall be entitled to rescind the Contract only
- if the Customer contractually has declared that his continuing interest in our performance is linked to and depending on timely delivery / performance by us (transaction where time is of the essence – “Fixgeschäft”) or
- if the Customer proves that, as a consequence of the delay, his interest in our performance of the Contract has ceased to exist or that the maintenance of the contractual relationship cannot reasonably be expected from him.
Otherwise, Article 323 clauses 4 to 6 BGB (German Civil Code) apply. As for the legal consequences of the rescission the statutory provisions (Articles 346 et seq. BGB – German Civil Code) apply.
5.7. In case of impossibility of our performance, our liability for damage and costs shall be limited as follows: Unless there is an intentional or grossly negligent breach of Contract attributable to us, our agents or representatives, our liability for damage and costs shall be limited to 20% of the net invoice amount of our performance; in case of a grossly negligent breach of Contract, our liability shall be limited to the foreseeable damage specific for the type of Contract. This limitation shall not apply, if we exceptionally have assumed the risk of procurement of the product or in case of damage to life, body or health of a person. The Customer´s statutory right to rescind the Contract in case of impossibility of our performance remains unaffected.
6. Passing of Risk / Insurance
6.1. Unless otherwise agreed upon, delivery shall be ‘ex works’ unpacked. In case of any packing done by us, packaging for shipment as well as all and any other packaging shall not be taken back by us under the Packing Regulations, excluding pallets. The Customer undertakes to dispose of the packaging at his own expense.
6.2. We are entitled to effect partial deliveries, as far as Customer can reasonably be expected to accept them.
6.3. The risk of an accidental loss or of an accidental deterioration shall pass to the Customer as soon as the goods have been delivered to the person or institution designed to pick up or execute the delivery, no later, however, than when the goods leave our company. The same shall apply for deliveries effected by our own vehicles or if freight or carriage paid and packing included has been agreed upon.
6.4. At the request and expense of the Customer we shall insure the goods against breakage, fire and water damage, damages in transit as well as against other insurable risks. If we agree to contract transportation or insurance, we are liable only as far as our contractual partners are liable to us.
7. Default in Taking Delivery, Delay in Acceptance or Delay in the Request for Delivery of the Customer
7.1. In case of delay in taking delivery by Customer or in case of delay in delivery for reasons attributable to the Customer, the risk of an accidental loss or of an accidental deterioration of the goods shall pass to the Customer at the moment the same is in delay or when the picking up or the delivery could have taken place if the conduct of the Customer had been in accordance with his duty.
7.2. If the Customer is in default in taking delivery of the goods or in case of faulty breach of other duties to co-operate, we shall have the right – without prejudice to further statutory claims – to claim for damage incurred by us including additional costs.
8. Retention of Ownership
8.1. We retain ownership to all goods delivered by us until we receive full payment of all sums owed to us – herein included future payments – originating in the business relation with the Customer. The retained ownership shall be deemed collateral for the total account payable to us (current account retention) until all current liabilities have been discharged. All goods subject to retention of ownership shall hereinafter be referred to as ‘reserved or privileged goods’.
If such reserved goods are paid by way of a bill of exchange from which follows a liability on our part the retention of ownership shall only become extinct if and when our liability under a bill of exchange becomes extinct as well; if payment by way of cheque / bill procedure has been agreed upon with the Customer the retention of title shall also include the honouring of the bill of exchange accepted by us by the Customer and shall not be forfeited once the cheque received has been credited to our account.
8.2. The Customer shall have the right to resell the reserved products in the ordinary course of business; however, as early as today Customer shall assign to us all claims that he may have against his Customers or against third parties on account of the resale to the amount of the invoice total (including VAT) of our claims. If the Customer includes the claims from a resale of the reserved products in a current account business relation existing with his Customer, this current account claim shall be assigned to us to the amount of the acknowledged balance; the same shall apply for the “causal” balance if the Customer becomes insolvent. The Customer shall still have the right to collect the assigned claims after they have been assigned.
Subject to the rules and regulations under the insolvency law, our right to collect claims ourselves shall remain unaffected; however, we undertake not to collect claims as long as the Customer does not breach his contractual obligations, especially observes his obligation of payment, is not in delay in payment nor has filed for the opening of an insolvency procedure or generally has ceased payments.
Under the right of resale, the Customer shall not be entitled to pledge or in any way charge by way of security any of the products.
8.3. If our undertaking not to collect claims under no. 8.2 above ceases to exist, we shall have the right – subject to the rules and regulations under the insolvency law – to withdraw the right of resale and to require the Customer to assign to us the right to recovery he may have against third parties, or to take back the reserved products after expiry of a reasonable delay set by us; the Customer shall be bound to surrender the products; no right of retention may be asserted by the Customer against this right to recovery. Taking back the reserved products constitutes a rescission of the Contract.
After having threatened to do so and after setting a deadline, reserved products which have been taken back by us for before-mentioned reasons may – subject to the rules and regulations under the insolvency law – be reasonably resold and/ or used by us; the proceeds thereof shall be credited against the liabilities of the Customer – less reasonable exploitation costs.
Under the conditions stated entitling us to revoke the Customer’s right of resale, we may also revoke the collection authorisation and may require the Customer to disclose to him the claims assigned as well as the debtors of such claims; furthermore, we may require the Customer to disclose to us all information necessary for collection, to submit the relevant documentation and to notify the debtors (third parties) of the assignment.
8.4. In case of damage or loss of the reserved products as well as in case of a change of domicile or of property, the Customer shall immediately notify us hereof in writing; the same applies for pledges or other interventions of third parties so that we are in a position to bring an action under Article 771 ZPO (German Code of Civil Procedure). If the third party is in no position to reimburse the judicial and extra-judicial costs incurred by us under Article 771 ZPO, the Customer shall be liable for the loss incurred us. If the release of the reserved products is achieved without legal proceedings, costs hereby incurred may also be charged to the Customer, herein included costs of regaining pledged reserved products.
8.5. Any processing or transformation of the products purchased by the Customer shall always be deemed to be on our behalf. If the reserved products are processed with other goods, which are the property of any person other than us, the product thereof shall be deemed to be owned in common with that other person, our share in the common property depending on the ratio of the total amount charged by us for the reserved products plus VAT – in case of business done under the ‘facon principle’ depending on the ratio of the total amount charged by us for facon work plus VAT – to the purchase price (invoice totals incl. VAT) of the other goods processed at the time of the processing or transformation.
Furthermore, the provisions applicable for the reserved products shall also apply for the product of such processing or transformation. With respect to the product of such processing or transformation, the Customer shall acquire expectant rights corresponding to the expectant rights to the reserved products.
8.6. If the reserved products are inseparably mixed or combined with other goods which are the property of any person other than us, the product thereof shall be deemed to be owned in common with that other person, our share in the common property depending on the ratio of the total amount charged by us for the reserved products plus VAT – in case of business done under the ‘facon principle’ depending on the ratio of the total amount charged by us for facon work plus VAT – to the purchase price (invoice totals incl. VAT) of the other goods which have been mixed or combined, at the time of the mixing or combining. If the mixing or combination of the products has been done in such a way that the product of the Customer is to be considered to be the main product it is agreed that the Customer assigns to us co-ownership of such product on a pro rata basis. The Customer shall keep such property owned either exclusively by us or owned in common with another person properly stored for us.
8.7. If our reserved products are resold after having been processed or transformed in any way, as early as today, the Customer shall assign to us as security his claims resulting from the resale of such products up to the invoice total (including VAT) of our claims.
If, on account of the processing or transformation of or of the mixing or combination of the reserved products with other goods which are the property of any person other than us, we have only acquired co-ownership pursuant to the above clauses 8.5 or 8.6, the claim to the purchase price of the Customer shall only be assigned to us in advance depending on the ratio of the total amount charged by us for the reserved products plus VAT – in case of business done under the ‘facon principle’ depending on the ratio of the total amount charged by us for facon work plus VAT – to the invoice totals of the other goods which are not our property.
Furthermore, provisions as laid down in clauses 8.2. – 8.4. above shall apply correspondingly for claims assigned to us in advance.
8.8. If under the laws of a foreign country within the borders of which the reserved products are located, a reservation of ownership or an assignment is not legally effective, the security provision corresponding to reservation of ownership or assignment in this legal sphere shall be deemed to have been stipulated.
If co-operation of the Customer is required in order to create such rights, the Customer shall be bound at our request to take all measures necessary in order to constitute and maintain such rights.
8.9. The Customer shall treat the reserved products properly and keep them in good repair; in particular, the Customer shall at his expense sufficiently insure the reserved products against theft, robbery, burglary, fire and water damage. As early as today, the Customer shall assign to us all rights resulting from such insurance and relating to the reserved products. We accept such assignment.
Furthermore, we reserve all rights to assert his claims for performance or claims for damages.
8.10. Upon request of the Customer, we undertake to release the securities we are entitled to as far as the recoverable value of such securities exceeds the value of our claims to be secured by more than 10 %. We shall have the right to select the securities to be released at his own discretion.
Customer shall assign claims against us in connection with our performances only with our prior written consent.
10. Description of Quality, Warranty
10.1 The specifications contained in our description of product and performances exhaustively and ultimately define the quality of our products and performances. The specifications constitute an agreement on the quality, subject to warranty, but not a guarantee of specific characteristics. None of the declarations made by us in connection with this Contract constitute a guarantee with the effect of an increase of liability or the assumption of a special obligation of essence. Only explicit declarations to this effect made in writing may constitute a guarantee within the meaning of the Germany Civil Code.
10.2. Customer shall not have any warranty claims in case of only insubstantial deviations from the quality agreed upon or in case of only insubstantial impediments to the use of the Product or performance.
10.3. The Customer may only assert warranty claims if he has duly observed his statutory duties (§ 377 HBG – German Commercial Code) to examine and to give notice of defects in time.
We shall then notify the Customer whether the goods which are subject to a complaint shall be returned to us or whether the Customer shall wait until the goods are either picked up by us at his site or are inspected by us on site.
10.4. In case of a defect of the Product, we are entitled to correct the performance, at our option, either by remedy of the defect or delivery of a substitute Product without defects. If one of these two means of correction of the performance is impossible or unreasonable, we are entitled to refuse such correction.
We may also refuse correction of the performance, as long as the Customer fails to fulfil his payment obligations for the non-defective part of our performance.
In case of remedy of the defect by us, we are obliged to bear all necessary expenses, especially costs for transportation of man and material, working and material costs, unless they are increased due to the fact that the defective Product was transported to a location other than the place of performance without such transport being within the scope of the normal use of the Product.
10.5. In case of impossibility or failure of the correction of performance, faulty or unacceptable delay of the correction or final and serious refusal to correct on our part or in case that correction can not reasonably expected to be tolerated by the Customer, Customer shall have the option to either reduce the purchase price (Price Reduction) or to rescind the Contract (Rescission).
10.6. Unless otherwise provided for in no. 10.7. and 10.8. below, any other claims of Customer in connection with defects of our Products or performances, no matter on what legal grounds (especially claims for damage due to breach of obligations, claims of tort for damage to things as well as claims for compensation of costs) shall be excluded; this especially applies to claims for damage to other things than the Products as well as to claims for loss of profit.
10.7. The limitation/ exclusion of liability contained in no. 10.6. above does not apply:
10.7.1 in case of damage to life, body or health of a person resulting from a faulty breach of obligation by us, our legal representatives or agents;
10.7.2 in case of mandatory liability in accordance with the “Produkthaftungsgesetz” (Product Liability Code);
10.7.3 in case of faulty breach of a fundamental contractual obligation (duty the fulfilment of which makes the due performance of the Contract possible in the first place or on the observance of which the Customer may regularly trust) on our side or by our legal representatives or agents; unless the breach is due to purpose or gross negligence, the liability for damage is limited to the foreseeable damage typical for the type of Contract;
10.7.4 in case of fraudulent non-disclosure of a defect known to us, and in case of a guarantee within the meaning of the BGB (German Civil Code) with respect to the quality of the Product if a defect within this guarantee gives rise to our liability;
in case the Customer has a claim for damage instead of the performance which
10.7.5 we, our legal representatives or agents are responsible for;
in case of other damage resulting from a breach of Contract due to our purpose
10.7.6 or gross negligence or of our legal representatives or agents; unless the breach is made on purpose, the liability for damage is limited to the foreseeable damage typical for the type of Contract.
10.8. As for the compensation of costs no. 10.7. applies accordingly.
10.9. Nos. 10, in particular, nos. 10.6. and 10.8, above do not affect the statutory provisions with regard to the burden of proof.
10.10 Customer´s recourse against us according to Article 478 BGB (recourse of the Entrepreneur) exists only insofar as the Customer has not entered into agreements with his Customer which exceed the statutory warranty claims. This is without prejudice to other rules on the Recourse of the Entrepreneur.
11. Liability for Ancillary Obligations
If, due to our fault or the fault of our legal representatives or agents, the Product can not be used as contractually intended as a consequence of a lack of advice or information prior to or after the conclusion of this Contract or as a consequence of wrongful advice or information or other wrongful performance of ancillary obligations (especially instructions for use and maintenance of the Product) prior to or after the conclusion of this Contract, the provisions of no. 10.6. to 10.9. above apply, with the exclusion of any other claims of the Costumer.
12. General Liability/ Rescission of Contract by Customer
12.1. The following provisions apply to the Customer´s claims other than claims in connection with defective products. However, these provisions shall not constitute a limitation or waiver of our statutory or contractual rights and claims.
12.2. Without prejudice to the provisions for delay in payment (no. 5.5.) and impossibility (no.5.7.), the provisions of no. 10.6. and 10.7. above apply accordingly to our liability for damage. Any further liability for damage – no matter on what legal grounds – shall be excluded. This applies especially to claims for damage beside the performance and instead of the performance on the basis of breach of obligations, as well as claims under tort for compensation of damage to objects under Article 823 BGB (German Civil Code).
12.3 The limitation contained in no. 10.2. above does also apply if Customer claims compensation of costs incurred.
12.4 Any fault of our legal representatives and agents may be attributed to us.
12.5 The statutory rules on the burden of proof remain unaffected.
12.6 As far as our liability is excluded or limited, such exclusion or limitation does also apply to the personal liability of our staff, employees, legal representatives and agents.
12.7. If we breach an obligation of this Contract, Customer shall only be entitled to rescind this Contract, subject to the applicable statutory provisions, if fault for such breach is attributable to us. In the cases provided for in no. 10.5. above (failure of remedy etc.) and in cases of impossibility, however, the statutory provisions unlimitedly apply; as for a rescission of the Customer because of delay in delivery or performance, the provisions contained in no. 5.4.3., 5.4.4. and 5.6. above apply. Upon our request, Customer shall declare within a reasonable delay of time, whether he will rescind this Contract or insist on our performance under this Contract.
13. Know How and Inventions
We reserve all rights and title to any valuable, new and confidendial knowledge (know how) we dispose of or gain during the performance of any contracts made with us, as well as to inventions and any intelectual or industrial property rights that may exist insofar, unless otherwise agreed upon and as far as the Customer, according to the purpose of the respective contract, is not entitled to use the respective Products.
14. Term of Prescription
14.1. The term of prescription for rights and claims based on defects of the Products or performances – no matter of which legal nature – shall be one year. This however shall not apply to the cases provided for in Articles 438 cl. 1 no.1, 438 cl. 1 no. 2, 479 cl. 1 and 634 a.) cl. 1 no. 2 BGB (German Civil Code); for these cases a term of prescription of three years shall apply.
14.2. The terms of prescription laid down in no. 14.1. above shall also apply to any and all claims for damage against us in connection with defects to the Products – no matter what may be the legal nature of such claims. As for any claims for damage against us which are not in connection with defects to the Products, the term of prescription provided for in no. 14.1. sentence 1 above apply.
14.3. The terms of presription provided for in no. 14.1. and 14.2. above shall not apply:
- In case of breach of an obligation on purpose;
- In case of fraudulent non-disclosure of a defect known to us or in case of a guarantee with regard to the quality of the Product or performance; in case of fraudulent non-disclosure those statutory terms of prescription apply instead of the ones provided for in no. 14. 1 above, which would apply in the absence of fraudulent non-disclosure with the exclusion of the prolongation of the term in case of fraudulent non-disclosure in accordance with Articles 438 cl. 3 respectively 634 a.) cl. 3 BGB (German Civil Code).
- To claims for damage in case of damage to life, body, health or freedom of a person;
- To claims under the Produkthaftungsgesetz (Product Liability Code);
- In case of a grossly negligent breach of obligation or
- In case of breach of a fundamental contractual obligation.
In these cases the statutory terms of prescription shall apply.
14.4. Unless otherwise expressly provided for herein, the statutory provision on the beginning of the term of prescription, the interruption of their running, their suspension an the re-start shall remain unaffected.
14.5. The claims for reduction of the purchase price and the right to rescind from the Contract are excluded, if the claim for correction of the performance is prescribed. In such case the Customer may however refuse payment of the purchase price as far as he would be entitled to do so on the basis of his right to reduce the purchase price or his right to rescind from the Contract.
15. Third Party´s Rights
We do not warrant that the use, installation or resale of any of our Product does not infringe third parties’ industrial property rights. However, we confirm that we have no knowledge of any such third parties’ rights.
16. Compensation for Damages
If we have a right to damages instead of performance we are entitled to claim as compensation 20 % of the purchase price, in case of business done under the ‘facon principle’ 20 % of the amount charged for facon work, without VAT respectively, unless the Customer substantiates evidence that only a considerably less damage has been caused.
We reserve the right to claim further damages. With respect to this, for the pupose of minimizing damage and after due discretion, we shall have the right to buy goods in replacement or to have the goods melted down; such shall also apply for business done under the ‘facon principle’.
In the latter case, also to the benefit of the Customer who supplied the amount of precious metal which has been stipulated, only such amount shall be set off as will be realized by the sale of the precious metal content of the melted down goods less the loss due to the melting process as well as costs relating to this, e.g. refining costs etc.
17. Place of Performance, Place of Jurisdiction, Applicable Law, Purchase within the EU, Safeguarding Clause
17.1. Place of performance shall be our principal place of business exclusively, unless otherwise agreed upon.
17.2. If Customer is a merchand pursuant to the HGB (Commercial Code), juristic person under public law or public utility fund, place of jurisdiction for all liabilities resulting from the contractual relationship – herein included liabilities from cheques and bills of exchange – shall either be our principal place of business or, at our option, the location of the Customer. This agreement as to the place of jurisdiction shall also apply for Customers having their location in a foreign country.
17.3. For all rights and obligations resulting from the contractual relationship between us and the Customer German law, excluding UN Sales Convention (CIS convention on contracts for the international sale of goods of April 11, 1980), shall apply exclusively, without regard to German collision rules.
17.4. Should individual provisions of these General Terms and Condition for Purchase and Delivery or individual provisions of other agreements concluded with us be or become invalid, this shall not affect the validity of the other provisions or agreements.
17.5. Customers from EC countries – when buying goods for use within countries of the European Community – shall be bound to compensate for all and any damage which may be incurred by us due to:
- tax violations committed by the Customer himself or
- false information given by the Customer or information which has been withheld from us by the Customer relating to his financial situation relevant for taxation.