CGDE

Terms and Conditions of delivery
of the OTTO BRENSCHEIDT GmbH & Co. KG
(october 2005)

1. General

1.01
The following terms are only valid in business connections and are basis of all our offers, orders, deliveries and services.

1.02
Different terms will only be accepted in so far, as they are made in agreement with our terms and condtions or, in individual cases, if they are explicit basis of the particular order or service.

2. Quotation

2.1
Our quotations are always subject to change. In doubt, the conract accomplishes only according to requirement and content of our written acceptance of order. Individual acknowledgments remain uneffected.

2.02
Acquainted price indications are no offers, only become basis of the contract by arrangement. We are, at most, bounded to our advertising prices  – if there are no other specifications – for a period of one month until placing of order.

2.03
Quotations and attachments are not allowed to be accessed to a third without our permission.

3. Prices and conditions of payment

3.01
Our prices are quoted netto without discount or other abatements ex works, exclusive of packaging, freight and assurance, plus respectively valid value-added tax. Granting cash discount must be explicit declared by both parties. Prices are only valid for processing-compatible constructed and manufactured parts. Additional processes, such as removal of colour, oil, grease, residues of polishing paste and later fixed openings at hollowwares, as well as the creation of audit reports, are charged as agreed with client before.

3.02
If the expense factors, which are applicable for pricing (production material, energy, operating materials, salaries and wages,etc.) change considerably after conclusion of the contract and delivery, we are allowed to demand an agreement of new prices from the client. If an agreement does not accomplish, we are allowed to withdraw from the treaty.

3.03
If there is no other agreement, invoice is payable 10 days upon receipt, without any abatements or cash discount. The products remain in our property until they are completely paid. Complaints don’t extend the payment target. In case of default, we calculate default interest amounting to 8 % above base rate, irrespective of further rights.

3.04
The client is only entitled to the right of charging against our claims, if his claims are undisputable and legally established.

4. Delivery

4.01
Delivery time begins with receipt of the confirmation of order, if no other arrangements are made. If the client delivers the material, which is to be executed later, the delivery time starts at that moment.

4.02
If delivery delays on our account or on account of subcontractors, because of unpredictable cicumstances (act of god, strike, shortage of raw materials, breakdown, power failure), the client is authorised to to withdraw from the contract within an adequate period.
§ 323 Abs. 2 BGB remains uneffected. If delvery becomes unacceptable, because of these circumstances, we are entitled to refuse delivery. A claim for damages doesn’t exist, if we are not responsible for the circumstances.

4.03
If the client defaults according to his obligation to allocate and co-operate after written reminder, we are allowed to withdraw from the contract and to demand damages under definition of a deadline of 14 days.

4.04
Partial delivery is possible, if it is reasonable for the client.

4.05
Delivery takes place ex works exclusively packaging

4.06
With leaving our house, latest with disposal to the carrier, liability devolves to the client. The contractor is liable for intention or gross negligence in terms of damages in transit.
Liability for slight negligence is excluded, if it is not about breach of contract-essential duty in terms of the jurisdiction of the Federal Court of Justice.

4.07
If the products, which are to be executed are picked up by us, on request of the client, the client is liable for any damages in transit. Assurance of these risks lies in the decrition of the client. According to the clients’ liability for damages in transit, we refer to clause 4.06, sentences two and three.

4.08
The aforementioned clauses are also valid if we granted carriage free delivery.

4.09
If the goods are ready for delivery, but delivery delays for reasons, we are not in charge for, the danger devolves to the client.

4.10
Dispatch type sequence, character and instruments are defined by us, without guarantee for the fastest and cheapest transport. Interests of the client are considered adequately. If we act as carrier, general german carrier condtions are valid additionally.

4.11
Goods, which are announced ready for dispatch have to be released directly,  at the latest after the expiration of an adequate period, by the client. If they are not released, we are authorised to stock the goods at the expense of the client and to charge them as delivered ex works.

4.12
If delivery delays by request or at the clients’ instance, we are allowed to charge demurrage to the amount of 1 % of the amount invoiced, starting one month after announcement of readiness for dispatch, per month or part thereof. Demurrage is limited to 5 % of the amount invoiced, unless we are able to verify higher storages. The client may provide the evidence that storages have not arised or are much lower than the flat-charge.

4.13
We are not liable for latency, if the exceedance is still moderate, unless appointments were accepted bindingly.

4.14
Assurance against damages in transit only happen on request and at the expense of the client.

4.15
If executed products are returned for reasons, we are not responsible for, the client accounts for damages until the products reach our house.

4.16
Packaging of finished parts: material to be executed is sent packed, return-packaging is demanded and packaging material has to be reusable. Additional packaging after finishing, it will be charged seperatly and not taken back.

5. Guaranty

5.01
We only guarantee for our services according to the following appointments and only adverse to the client. Assignment of guarantee claims adverse to a third is excluded.

5.02
We guarantee professional surface treatment in basic material according to the acknowledged rules of technique and the valid DIN standards. Discrepancies because of differences in quality of the raw material and at electro-plating and chemical processes are partially inevitable.

5.03
Defective treated parts are professionally mended by us, for free. If electro-plated parts are deformed, sawed, drilled or changed, the processor takes the risk. Claims because of the above mentioned reason will not be accepted.

5.04
The period of warranty is one year. The delivered goods have to be checked for damages directly. Damages have to be notified in writing immediately, but not later than 12 days after receipt of the goods. The duty to check also exists, if patterns have been sent. This is also true for damages which are not noticeable directly, within the above mentioned period.

5.05
If reproval does not achieve us in due form and time, the goods are authorised in terms of the German Commercia Code.

5.06
The products to be executed, have to be delivered with bill of delivery, stating exact quantity and total weight. Gross weight is non-binding for us. Missing parts are only replaced, if their delivery documented by our bill of delivery. We don’t assume liability for rejections and shortfalls of mass production components and small parts up to 3 % of the delivered quantity, unless it was arranged otherwise.

5.07
If supplementary performance fails or if the seller refuses amendment and additional delivery  or supplementary performance is unacceptabl, the client has reserved the right to decrease the purchase price or to withdraw from the contract and to demand damages. Amendment has failed after an unsuccessful second attempt, if no other circumstances are to be considered.

5.08
The contractor is liable for intention and culpable negligence besides damages from injury of life, body or health. Liability slight negligence is excluded, if no essential contractual obligation in terms of jurisdiction of the Federal Court of Justice is violated. If the above mentioned disclaimer doesn’t enure, because of a breach of contract,  the contractor is liable only for contract typical and predictable damages. Further claims of the client are excluded. Liability of the contractor according to Product Liability Act stays unaffected. Fines are disallowed.

5.09
An absence of a part delivery doesn’t enable the client to withdraw from the contract, unless the absence is so considerable, that further part deliveries are uninteresing for the client.

5.10
Guarantee is valid for demands under customary, operating and climatic conditions. If the product is mentioned for special conditions, and we were not informed previously, so this has not become subject matter of the contract, guaranty for these special conditions is excluded. If amendment was still tried by a third, guarantee expires, if the user didn’t have a chance to clear the absences.

5.11
The material to be executed has to be free from impurities, it must not have any pores, sinkholes, cracks, laminations, etc; windings have to fall below sufficiently. The used metal-working oils and emulsions have to be removable by smooth alkaline cleaning agents. Tubes, profiles, hinges have to be manufactured free of grease. If not, we are allowed to withdraw from the contract. Does the client insist on processing or  we are of the opinion, that the delivered material is technological not applicable for such a surface treatment, we don’t take over any guaranty for stability, adhesion, color and corrosion avoiding features of the appied shift, if deficiency referred to the ineptitude of the material and not to our culpable negligance or intention. For adhesion we don’t take over any guaranty, if the material has been deformed after surface treatment, even not if the on probation electroplated parts can be deformed without blistering of the electroplated shift and the client demanded for processing despite of advice of danger of blistering. Trading goods are delivered according to DIN standards.

5.12
We don’t take over any guaranty for corrosion damages which are not based upon culpable negligence or intention, if the goods to be finished, will not be left to us for test purposes, for an adequate period, but at least six weeks before processing. If short-time tests or other chemical and/or mechanical tests or creation of test charts or inspection certificates are impossible, but the customer although demands for surface treatment, we don’t take over any guaranty for damages, which refer to a lack of inspection, unless in case of intention or culpable negligence.

5.13
Hollow parts are only electroplated outside, unless hollow treatment was arranged. Directly beginning corrosion at untreated areas is not a reason for reclamation. Surface treated material is endangered by condensation water and fretting corrosion. It has to be packed, stored and transported appropriate.

5.14
The client has to determin the minimum shift thickness at an agreed break point and to avoid chemical and mechanical damages of the surface by adequate actions. We are only liable for weather damages, as well as for damages that arise from seepaging residues, in case of intention or culpable negligence. We unhinge hydrogen only with corresponding arrangement and without any liability, unless intention or culpable negligence.

6. Security interest

6.00
Delivered trading goods stay in our property until they are fully paid.

6.01
Our produced products are entitled to a legal entrepreneur lien. Irrespective of this we have a contract lien for the products, the client sent us for surface treatment and which saves our claim concerning the contract. If there is no other arrangement, the lien is also valid for claims that result from former contracts. If the surface treated parts are delivered to client before they are fully paid, these products stay our property and are only taken into custody by the client, until they are fully paid. This is also valid for the clients’ remainder according to the products, we were meant to electroplate and which the client received from a third under secret lien. We are authorised to leave out the secret lien. Clients’ claims of retransfer of ownership to a third are ceded to us. Herewith we accept the assignment.

6.02
The client is not allowed to mortgage or to assign articles which are subject to our lien or secret lien or wich are in pledged property. Although the client is allowed to resell or process the goods in normal business connections, unless he has assigned the claim to a third. A possible manufacturing of the goods into a new chattel by the client happens on our behalf and with effect for us, without arising obligations. The client just holds a co-ownership proportional to the value of the new article less the value of our service. The client has to treat the new article with commercia accuracy and free of charge.

6.03
If the client creates a new article by joining, mixing or alloying our security collateral with other chattels, which he owns alone or in co-operation, he transfers the ownership to us yet, proportional to the value of the safety goods to the value of the other article. At the same time he promises to keep the new article free of charge and correct for us.

6.04
In case of resale, the client has to inform the his customer about our pledged property.

6.05
To make sure implementation of our claims, the client cedes, even prospective claims, arising from resell or processing, including ancillary rights to the amount of the merchandise value to us.

6.06
The client is authorised to collect claims resulting from resale and processing in ou favour. On our demand, the client has to prove claims seperately and to diclose the cession to third, including the demand to deposit till the amount of our claim. Furthermore we are authorised to inform the third about the cession and to collect the claims.

“But we will not challenge the client to collect the claims or to disclose the cession. We also won’t collect the claim and disclose the cession as long as the client will comply his obligations to pay.”

6.07
The client is bound to inform us about enforcement measures of a third into security interest.

6.08
The client is bound to assure the goods in our pledged property sufficiently against fire and bulgary and, if demanded, to cede the claims against the assurer and the author of damage to us.

6.09
By request of the client, the securities, we are entitled to, according to the above mentioned clauses, will be released in so far, that the value exceeds the claims to be saved by more than 20%.

6.10
In case that a third enforces rights of a security, the client engages to turn all necessary documents to us and to make up arising intervention costs.

6.11
All of our claims, even from other contracts, fall due immediately, even in case of deferral, as soon as the client defaults culpably with completion of different, not unimportant depts, stops payments, becomes heavily indepted, opens an insolvency proceedings or the opening of such a proceeding is defeated because of for lack of mass. In this case we are authorised to deny outstanding deliveries and services and to appoint an adequate period in which the client might pay bit by bit or achieves securities. After ineffective expiratin of the period, we are allowed to withdraw from the contract.

7. Place of fulfilment and jurisdiction

7.01
Place of fulfilment and jurisdiction for all claims arising from the contract for both parties, if they are traders is the place of business.

7.02
Basis is the German legislation, excluding foreign law and the simplified Uniform Law on the International Sale of Goods. The German version of the contract is decisive.

Severability clause

If any clause of these conditons shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining contract shall not in any way be affected or impaired thereby. Ineffective and impracticable clauses should be displaced by that effective and practicable clause, whose impacts approach to the economic aim, which followed the contract parties with ineffective and impracticable clauses. The above mentioned clauses become valid, if the contract proves as incomplete.