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1.1 The General Terms and Conditions of Business of Gustav Klauke GmbH (hereinafter designated "Klauke") shall apply to the exclusion of all others. Any conditions of Klauke's contractual partner (hereinafter designated "Purchaser") that contradict or differ from these Terms and Conditions will not be recognised, unless Klauke has explicitly consented to their applicability in writing. These Terms and Conditions shall still apply even if, having knowledge of terms and conditions of Purchaser that contradict or differ from its own Terms and Conditions, Klauke effects delivery to Purchaser without reservation.
1.2 The Terms and Conditions shall also apply to all future business transactions with Purchaser.
1.3 The Terms and Conditions shall apply only to business enterprises.
2 Offer and acceptance
2.1 All offers are subject to change. We reserve the right to remove items from the product range and to make delivery exclusions and price changes. The scope of Klauke's delivery obligation shall be determined by Klauke's order confirmation and/or offer. Verbal and telephone agreements shall not be effective until confirmed in writing.
2.2 If the order is to be defined as an offer pursuant to § 145 of the German Civil Code (BGB), Klauke can accept it within four weeks. The contract enters into force at the latest on dispatch of the goods ordered, and in the event of part-deliveries on dispatch of the first consignment.
2.3 The documents, drawings, details of weights and dimensions, samples etc. contained in the offer provide only approximate information and do not constitute a qualitative description of the nature of the goods. Klauke is entitled to supply goods differing from the descriptions in the offer, provided that these differences are not of a fundamental or essential nature and the purpose as defined in the contract is not restricted as a result.
2.4 To the extent that Klauke manufactures parts on the basis of customer drawings, the drawings produced by Klauke and approved by Purchaser will be authoritative. Any deviations from approved drawings must be agreed on separately and any extra costs for this recompensed.
2.5 Insofar as Purchaser requests individual cost estimates these must be remunerated. If an order is placed, the associated charges will be offset against the purchase price.
3 Industrial property rights
3.1 Klauke reserves all copyright and proprietary rights to diagrams, drawings, calculations and other documents. This shall apply in particular to those written documents marked "confidential". Purchaser may not make them available to third parties without Klauke's prior written consent.
3.2 If deliveries are made on the basis of drawings or other information provided by Purchaser and third-party proprietary rights are asserted as a result, Purchaser shall indemnify Klauke and hold Klauke harmless from all third parties claims.
4 Delivery/Delivery period/Default
4.1 Delivery deadlines and delivery dates shall only be deemed to have been agreed with binding force if they have been explicitly confirmed in writing in the offer. Klauke shall not be obliged to meet the delivery deadline or delivery date if Purchaser has not met its obligations (in respect of payment of instalments, furnishing of required documents etc.) in good time and reserves the right to plead non-performance of the contract.
4.2 Delivery periods shall begin at the earliest on the day on which the contract has been concluded in writing and presupposes that all queries of a technical nature have been resolved.
4.3 In the event of subsequent change requests on the part of Purchaser, Klauke shall be released from the obligation to meet the delivery term or delivery deadline.
4.4 The delivery period shall be deemed to have been met if the item to be delivered has left Klauke's factory or Klauke has notified readiness for shipping before expiry of said period.
4.5 The Purchaser cannot assert any claims due to delivery delays that are not attributable to intent or gross negligence on the part of Klauke. This shall apply in particular to delivery delays due to force majeure. In such circumstances, the agreed delivery deadline or delivery period shall be extended by the duration of the impediment to delivery.
4.6 Returns are only possible if Klauke has given its explicit written consent to them beforehand. Parts, which must be from the latest product range, have to be returned in their original packing in a flawless, saleable condition. The return consignment is to be carriage paid at sender's risk less 15% redemption fee. Processing charges will be deducted at cost and may cover items such as recoding, cleaning or new packaging.
4.7 Should Purchaser fail to accept delivery of the goods or neglect other obligations in respect of cooperation, Klauke shall then be entitled to claim compensation for any loss incurred as a result, including any additional expenses. Klauke shall also be entitled to impose a reasonable deadline on Purchaser to accept the goods and, should this set period elapse without effect, to withdraw from the contract and require compensation in lieu of performance.
4.8 In the case of customised items Klauke reserves the right to effect a delivery that is 10 per cent over or under the requested quantity.
5 Transfer of risk/Packing
5.1 Risk shall be transferred to Purchaser at the latest on shipment of the goods, even in the case of part deliveries.
5.2 Deliveries are ex works. Klauke will only insure the goods against insurable risks at Purchaser's request and cost.
5.3 Transport packaging and all other packaging as defined in the German Packaging Regulations are non-returnable, with the exception of pallets. Purchaser shall be obliged to dispose of the packaging at its own expense.
6 Prices/Terms of Payment
6.1 Unless specified otherwise in the order confirmation, the prices quoted are always ex works excluding packing, which will be billed separately.
6.2 The prices quoted are net and exclusive of statutory sales tax at the relevant amount at the time and which will be added to them.
6.3 All prices for items made of electrolytic copper are based on an index price for copper of €‑127 per 100 kg. The official index price for E-Cu on the date of the order will be used as a basis to calculate the copper surcharge.
6.4 Klauke shall be entitled to invoice Purchaser for any extra expenses incurred as a result of subsequent change requests.
6.5 Invoices are due for payment in full without any deductions within 20 days of date of invoice. Discounts shall be deemed to have been agreed only if Klauke has explicitly provided written confirmation of them.
6.6 Even if Purchaser's terms of payment state the contrary, Klauke shall be entitled in each case to offset a payment, initially, against the oldest, not legally enforceable debt. If costs or interest charges have already been incurred, Klauke shall be entitled to first of all offset payments against these costs, then against the interest charges and finally against the primary debt.
6.7 Klauke shall be entitled to assign claims within the Textron Group.
6.8 Purchaser shall only be entitled to offset payments if and to the extent that its counterclaims have been legally established, are uncontested or have been recognised by Klauke in writing. Purchaser's right of retention is limited to claims deriving from the contractual relationship.
6.9 Klauke shall be entitled to charge a flat rate shipping charge of at least € 6.00 per consignment for third party deliveries (where the delivery address differs from the ordering address). Higher shipping costs will be agreed with Purchaser on a case-to-case basis.
7 Liability for material deficiencies/Liability
7.1 Klauke does not assume liability for damage or loss caused by improper handling, wear and tear, storage or other actions on the part of Purchaser or third parties.
7.2 Claims deriving from liability of material damage as well as any warranties shall come under the statute of limitations 24 months after transfer of the goods, unless alternative agreements have been made when signing the contract. Batteries are excluded from this time period. We guarantee a period of one year only from handover in the event of delivery of batteries. This does not constitute a guarantee of durability.
7.3 Purchaser shall be obliged to discharge its duty of examination pursuant to § 377 of the German Commercial Code (HGB) even if the goods are resold.
7.4 Klauke shall have the option of either remedying the defect or supplying a replacement.
7.5 The expenditure necessary for rectification will not be borne by Klauke if such expenditure increases because the goods have been transferred to a location other than Purchaser's business premises following delivery. This shall not apply if the transfer is consistent with the contractually designated use of the item.
7.6 Purchaser's right of recourse against Klauke in respect of such claims due to liability for material deficiencies, which have been lodged against Purchaser by its own customers, shall be excluded if said customers have failed to discharge their obligations to examine the goods and notify any defects, or if the product has been modified by subsequent processing.
7.7 Klauke's liability for damages under the statutory regulations shall be without restriction if a breach of duty attributable to Klauke is a result of intent or gross negligence. To the extent that the breach of duty attributable to Klauke is based on simple negligence, and an essential contractual obligation has been culpably infringed, the liability for damages is limited to the foreseeable loss or damage typically occurring in comparable cases. Liability is excluded in all other respects.
7.8 This does not affect liability under the provisions of the German Product Liability Act, nor does it affect liability due to loss of life, physical injury or damage to health.
8 Retention of title
8.1 Klauke retains the title to all parts supplied until receipt of all payments due under the supply contract. In the event of conduct in violation of the contract, particularly payment default, Klauke shall be entitled to take back the goods purchased.
8.2 Purchaser shall be obliged to take good care of the parts supplied and to insure them at replacement value at its own costs against any form of destruction for the duration of the retention of title period.
8.3 Costs for maintenance and inspection work shall also be borne by Purchaser during the retention of title period, even if such works are carried out by Klauke.
8.4 In the event of common garnishment or other interventions by third parties, Purchaser must inform Klauke in writing immediately, so that Klauke can initiate a third-party action. If the third party is not in a position to reimburse legal and other charges, Purchaser shall be liable for them.
8.5 Purchaser shall be entitled to resell the purchased goods in the ordinary course of business, but must immediately assign to Klauke all claims amounting to the invoice total (including sales tax) of Klauke's claim, that may accrue to Purchaser as a result of the resale to its customers or third parties, irrespective of whether the goods have been resold with or without further processing. Purchaser shall also be entitled to collect this claim even after delivery. This does not affect Klauke's entitlement to collect the claim itself. However, Klauke shall undertake not to collect the claim as long as Purchaser meets its payment obligations from the proceeds received, does not default on payment and in particular, as long as no application for the initiation of insolvency proceedings has been made or there has been no suspension of payments.
8.6 If the goods have been supplied inseparably compounded or combined with other objects not belonging to Klauke, Klauke shall acquire joint title of the new or combined object in the ratio of the value of the item supplied (total invoice sum including sales tax) to the other object(s) at the time of blending or combining them. Purchaser shall hold in custody the ensuing solely or jointly owned property on Klauke's behalf.
8.7 Refunding part of the cost for tools does not bestow on Purchaser any right to these tools, which remain the sole property of Klauke.
9 Prohibition on assignment
All claims of Purchaser against Klauke deriving from the contractual relationship are non-assignable.
10 Product liability
10.1 Purchaser may only use the goods for their intended purpose and must ensure that these goods are only resold to persons familiar with the risks and hazards associated with the product.
10.2 When using the goods as a starting material or component of its own products, Purchaser shall be obliged, when introducing the finished product to the market, to include the goods supplied by Klauke when discharging its obligation to warn. As soon as requested to do so, Purchaser shall exempt and hold Klauke harmless from claims lodged against it in the event of this obligation being neglected.
11 Miscellaneous/Final provisions
11.1 Place of performance is Remscheid.
11.2 In respect of all legal disputes deriving from the contract the venue is Remscheid. However, Klauke shall be entitled to bring an action against Purchaser at the court in whose jurisdiction Purchaser has its general legal domicile or where Purchaser has a branch.
11.3 The contract shall be governed solely by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
11.4 Insofar as individual provisions of the contractual relationship become ineffective, the effectiveness of the remaining provisions shall not be affected. The contractual parties shall endeavour to replace the ineffective provision with an effective provision that corresponds as closely as possible to the commercial purpose of the contract.
Remscheid, November 2011