General Terms of Delivery and Payment of AMPECO GmbH

I. Scope of Application

1. The fol­lowing terms of sale apply to all con­tracts con­cluded between the buyer and us for the delivery of goods. They also apply to all future business rela­ti­onships, even if they are not expressly agreed upon again. Deviating con­di­tions of the buyer that we do not expressly ack­now­ledge are not binding on us, even if we do not expressly object to them. The fol­lowing terms of sale also apply if we execute the buyer’s order uncon­di­tio­nally with know­ledge of con­flicting or deviating con­di­tions of the buyer. 

2. All agree­ments made between the buyer and us for the exe­cution of the purchase con­tracts are set out in writing in the contracts.

II. Offer and Con­clusion of Contract

1. An order from the buyer that qua­lifies as an offer to con­clude a purchase con­tract may be accepted by us within two weeks by sending an order con­fir­mation or by sending the ordered pro­ducts within the same period.

2. Our offers are subject to change and non-binding unless we have expressly desi­gnated them as binding.

3. We reserve our pro­prietary rights, copy­rights, and other pro­tective rights to all illus­tra­tions, cal­cu­la­tions, dra­wings, and other docu­ments. The buyer may only pass these on to third parties with our written consent, regardless of whether we have marked them as confidential. 

Payment Terms

1. Our prices apply ex works without pack­aging unless otherwise spe­cified in the order con­fir­mation. Our prices do not include sta­tutory value-added tax. We will show this sepa­rately on the invoice at the sta­tutory rate appli­cable on the date of invoicing. 

2. A cash dis­count deduction is only per­mitted with a special written agreement between us and the buyer. The purchase price is due net (without deduction) imme­diately upon receipt of the invoice by the buyer, unless a dif­ferent payment term results from the order con­fir­mation. Payment is only deemed to have been made when we can dispose of the amount. In the case of check pay­ments, payment is only deemed to have been made when the check is honored. 

3. If the buyer defaults on a payment, the sta­tutory pro­vi­sions apply.

4. The buyer is only entitled to offset, even if defect com­plaints or coun­ter­claims are asserted, if the coun­ter­claims have been legally estab­lished, ack­now­ledged by us, or are undis­puted. The buyer is only aut­ho­rized to exercise a right of retention if his coun­ter­claim is based on the same con­tractual relationship. 

IV. Delivery and Per­for­mance Time

1. Delivery dates or periods that have not been expressly agreed as binding are exclu­sively non-binding infor­mation. The delivery time spe­cified by us only begins when tech­nical ques­tions have been cla­rified. Likewise, the buyer must fulfill all obli­ga­tions incumbent upon him pro­perly and on time. 

2. If the under­lying purchase con­tract is a fixed-date tran­saction within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB, we are liable in accordance with sta­tutory pro­vi­sions. The same applies if the buyer is entitled to claim the loss of his interest in further per­for­mance of the con­tract as a result of a delay in delivery for which we are respon­sible. In this case, our lia­bility is limited to fore­seeable damage typi­cally occurring if the delay in delivery is not based on an inten­tional breach of con­tract for which we are respon­sible, whereby we are attri­bu­table for the fault of our repre­sen­ta­tives or vica­rious agents.
We are also liable to the buyer for delay in delivery in accordance with sta­tutory pro­vi­sions if this is based on an inten­tional or grossly negligent breach of con­tract for which we are respon­sible, whereby we are attri­bu­table for the fault of our repre­sen­ta­tives or vica­rious agents. Our lia­bility is limited to fore­seeable damage typi­cally occurring if the delay in delivery is not based on an inten­tional breach of con­tract for which we are responsible. 

3. In the event that a delay in delivery for which we are respon­sible is based on the cul­pable breach of an essential con­tractual obli­gation, whereby we are attri­bu­table for the fault of our repre­sen­ta­tives or vica­rious agents, we are liable in accordance with sta­tutory pro­vi­sions with the proviso that in this case lia­bility for damages is limited to fore­seeable damage typi­cally occurring.

4. Otherwise, in the event of a delay in delivery for which we are respon­sible, the buyer may claim a flat-rate com­pen­sation of 0.5% of the delivery value for each com­pleted week of delay, but not more than 5% of the delivery value.

5. Further lia­bility for a delay in delivery for which we are respon­sible is excluded. The buyer’s further sta­tutory claims and rights that he has in addition to the claim for damages due to a delay in delivery for which we are respon­sible remain unaffected. 

6. We are entitled to partial deli­veries and partial ser­vices at any time, pro­vided this is reasonable for the customer.

7. If the buyer is in default of accep­tance, we are entitled to claim com­pen­sation for the resulting damage and any addi­tional expenses. The same applies if the buyer cul­pably breaches obli­ga­tions to cooperate. Upon occur­rence of default of accep­tance or debtor default, the risk of acci­dental dete­rio­ration and acci­dental loss passes to the buyer. 

V. Transfer of Risk – Shipping/​​Packaging

1. Loading and shipping are carried out uninsured at the buyer’s risk. We will endeavor to take into account the buyer’s wishes and inte­rests with regard to the type of shipping and shipping route; any addi­tional costs resulting from this – even with agreed car­riage-paid delivery – are borne by the buyer. 

2. We do not take back transport pack­aging and all other pack­aging in accordance with the Pack­aging Ordi­nance; Euro pool pallets are excepted. The buyer must arrange for dis­posal of the pack­aging at his own expense. 

3. If shipping is delayed at the buyer’s request or due to the buyer’s fault, we will store the goods at the buyer’s expense and risk. In this case, noti­fi­cation of rea­diness for shipment is equi­valent to shipping. 

4. At the buyer’s request and expense, we will secure the delivery with transport insurance.

VI. Warranty/​​Liability

1. The buyer’s defect claims only exist if the buyer has pro­perly ful­filled his obli­ga­tions to inspect and give notice of defects owed under Section 377 HGB.

2. In the case of jus­tified defect com­plaints, we are obli­gated to provide sub­se­quent per­for­mance, excluding the buyer’s rights to withdraw from the con­tract or reduce the purchase price (reduction), unless we are entitled to refuse sub­se­quent per­for­mance on the basis of sta­tutory pro­vi­sions. The buyer must grant us a reasonable period for sub­se­quent per­for­mance. At the buyer’s choice, sub­se­quent per­for­mance may be carried out by reme­dying the defect (rec­ti­fi­cation) or deli­vering new goods. In the case of defect reme­diation, we bear the necessary expenses, insofar as these do not increase because the subject matter of the con­tract is located at a place other than the place of per­for­mance. If sub­se­quent per­for­mance has failed, the buyer may, at his option, demand a reduction of the purchase price (reduction) or declare with­drawal from the con­tract. Rec­ti­fi­cation is deemed to have failed after the second unsuc­cessful attempt, unless further rec­ti­fi­cation attempts are appro­priate and reasonable for the buyer based on the subject matter of the con­tract. The buyer may only assert claims for damages under the fol­lowing con­di­tions due to the defect after sub­se­quent per­for­mance has failed. The buyer’s right to assert further claims for damages under the fol­lowing con­di­tions remains unaffected. 

3. The buyer’s war­ranty claims expire one year after delivery of the goods to the buyer, unless we have frau­du­lently con­cealed the defect; in this case, sta­tutory pro­vi­sions apply. Our obli­ga­tions under Section VI No. 4 and Section VI No. 5 remain unaffected. 

4. We are obli­gated in accordance with sta­tutory pro­vi­sions to take back the new goods or to reduce the purchase price (reduction) even without the otherwise required deadline if the buyer’s cus­tomer as a con­sumer of the new movable item sold (con­sumer goods purchase) could demand the return of the goods or the reduction of the purchase price from the buyer due to the defect of these goods, or if the buyer is con­fronted with a cor­re­sponding recourse claim resulting from this. We are also obli­gated to reim­burse the buyer for expenses, in par­ti­cular transport, travel, labor, and material costs, that the buyer had to bear in relation to the end con­sumer as part of sub­se­quent per­for­mance due to a defect in the goods existing at the time of transfer of risk from us to the buyer. The claim is excluded if the buyer has not pro­perly ful­filled his obli­ga­tions to inspect and give notice of defects owed under Section 377 HGB. 

5. The obli­gation pur­suant to Section VI No. 4 is excluded insofar as it con­cerns a defect based on adver­tising state­ments or other con­tractual agree­ments that do not ori­ginate from us, or if the buyer has given a special gua­rantee to the end con­sumer. The obli­gation is also excluded if the buyer himself was not obli­gated to exercise war­ranty rights against the end con­sumer on the basis of sta­tutory pro­vi­sions or did not raise this objection against a claim made against him. This also applies if the buyer has assumed war­ranties toward the end con­sumer that go beyond the sta­tutory measure. 

6. Regardless of the fol­lowing lia­bility limi­ta­tions, we are liable in accordance with sta­tutory pro­vi­sions for damages to life, body, and health that are based on a negligent or inten­tional breach of duty by us, our legal repre­sen­ta­tives, or our vica­rious agents, as well as for damages covered by lia­bility under the Product Lia­bility Act. For damages not covered by sen­tence 1 and that are based on inten­tional or grossly negligent breaches of con­tract as well as fraud by us, our legal repre­sen­ta­tives, or our vica­rious agents, we are liable in accordance with sta­tutory pro­vi­sions. In this case, however, lia­bility for damages is limited to fore­seeable damage typi­cally occurring, unless we, our legal repre­sen­ta­tives, or our vica­rious agents have acted inten­tio­nally. To the extent that we have given a quality and/​​or dura­bility gua­rantee with respect to the goods or parts thereof, we are also liable within the scope of this gua­rantee. For damages based on the absence of the gua­ranteed quality or dura­bility but not occurring directly to the goods, we are only liable if the risk of such damage is evi­dently covered by the quality and dura­bility guarantee. 

7. We are also liable for damages that we cause through simple negligent breach of such con­tractual obli­ga­tions whose ful­fillment enables the proper per­for­mance of the con­tract in the first place and on whose com­pliance the buyer regu­larly relies and may rely. However, we are only liable insofar as the damages are typi­cally asso­ciated with the con­tract and foreseeable. 

8. Further lia­bility is excluded regardless of the legal nature of the asserted claim; this applies in par­ti­cular to tort claims or claims for reim­bur­sement of futile expenses instead of per­for­mance; our lia­bility pur­suant to Section IV No. 2 through Section IV No. 5 of this con­tract remains unaf­fected. Insofar as our lia­bility is excluded or limited, this also applies to the per­sonal lia­bility of our employees, workers, staff, repre­sen­ta­tives, and vica­rious agents. 

9. The buyer’s claims for damages due to a defect expire one year after delivery of the goods. This does not apply in the case of injuries to life, body, or health caused by us, our legal repre­sen­ta­tives, or our vica­rious agents, or if we or our legal repre­sen­ta­tives have acted inten­tio­nally or with gross negli­gence, or if our simple vica­rious agents have acted intentionally. 

VII. Retention of Title

1. Until all claims, including all balance claims from current account, that we have or will have against the buyer now or in the future are ful­filled, the deli­vered goods (goods subject to retention of title) remain our pro­perty. In the event of the buyer’s conduct con­trary to the con­tract, e.g., payment default, we have the right, after prior setting of a reasonable period, to take back the goods subject to retention of title. If we take back the goods subject to retention of title, this con­sti­tutes with­drawal from the con­tract. If we seize the goods subject to retention of title, this is with­drawal from the con­tract. We are entitled to realize the goods subject to retention of title after taking them back. After deduction of a reasonable amount for rea­lization costs, the rea­lization pro­ceeds are to be offset against the amounts owed to us by the buyer. 

2. The buyer must treat the goods subject to retention of title with care and insure them at his own expense against fire, water, and theft damage suf­fi­ci­ently at repla­cement value. Main­tenance and inspection work that becomes necessary must be carried out by the buyer at his own expense in a timely manner. 

3. The buyer is entitled to sell and/​​or use the goods subject to retention of title pro­perly in the course of business as long as he is not in payment default. Pledges or transfers of ownership by way of security are inad­mis­sible. The buyer hereby assigns to us in full by way of security the claims arising from resale or any other legal reason (insu­rance, tort) with respect to the goods subject to retention of title (including all balance claims from current account); we hereby accept the assignment. We aut­horize the buyer revo­cably to collect the claims assigned to us for his account in his own name. The coll­ection aut­ho­rization may be revoked at any time if the buyer does not pro­perly fulfill his payment obli­ga­tions. The buyer is also not aut­ho­rized to assign this claim for the purpose of debt coll­ection by way of fac­toring, unless at the same time the obli­gation of the fac­toring company is estab­lished to make the con­side­ration in the amount of the claims directly to us as long as claims still exist from us against the buyer. 

4. Pro­cessing or trans­for­mation of the goods subject to retention of title by the buyer is in any case carried out for us. If the goods subject to retention of title are pro­cessed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including value-added tax) to the other pro­cessed items at the time of pro­cessing. The same applies to the new item created by pro­cessing as to the goods subject to retention of title. In the case of inse­pa­rable mixing of the goods subject to retention of title with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including value-added tax) to the other mixed items at the time of mixing. If the buyer’s item is to be regarded as the main item as a result of the mixing, the buyer and we agree that the buyer transfers pro­por­tionate co-ownership of this item to us; we hereby accept the transfer. The buyer stores our sole or co-ownership of an item thus created for us. 

5. In the event of third-party access to the goods subject to retention of title, in par­ti­cular sei­zures, the buyer will point out our ownership and notify us imme­diately so that we can enforce our ownership rights. Insofar as the third party is not able to reim­burse us for the judicial or ext­ra­ju­dicial costs arising in this con­nection, the buyer is liable for this. 

6. We are obli­gated to release the secu­rities to which we are entitled insofar as the rea­lizable value of our secu­rities exceeds the claims to be secured by more than 10%; the sel­ection of the secu­rities to be released is incumbent upon us.

VIII. Place of Per­for­mance, Juris­diction, Appli­cable Law

1. The place of per­for­mance and juris­diction for deli­veries and pay­ments (including check and bill of exchange actions) as well as all dis­putes arising between us and the buyer from the purchase con­tracts con­cluded between us and him is our regis­tered office. However, we are entitled to sue the buyer also at his place of resi­dence and/​​or business. 

2. The rela­ti­onships between the con­tracting parties are governed exclu­sively by the law appli­cable in the Federal Republic of Germany. The appli­cation of the UN Con­vention on Con­tracts for the Inter­na­tional Sale of Goods is excluded. 

As of July 2012