Sale and delivery conditions

(5.1) Packaging, dispatch route and means of transportation are generally based on the graded lump-sum prices; the regulations of § 4.1 are applicable in addition. The seller charges the costs for packaging, dispatch route and means of transportation.

(5.2) A carriage-paid delivery i.e. a delivery without freight and packaging costs within Germany, is done for free starting with a net order value of Euro 2,500.00. It is made clear that a delivery is "free to the door" when the carrier opens his vehicle at the agreed upon unloading point and makes it available for unloading. The unloading as well as the on-site delivery of the goods is to be done by the customer.

(5.3) Undamaged returnable load carriers are taken back by the seller in case of freight-free provision. The pool pallets used for transportation are to be exchanged with the freight carrier or are to be returned. Details of the processing are given in the respectively applicable loading equipment handling of the seller, which can be stored permanently in the Internet at cdn.obo.de/mailings/downloads/Packschema_Ladehilfsmittel.pdf and are a part of this contract.

(5.4) The smallest selling units defined in the article master data are binding. Goods ordered below the smallest selling unit are rounded off automatically i.e. without consulting the buyer, to the next higher smallest selling unit.

(5.5) The seller reserves the over and under-deliveries, in particular in case of order-related production in the market-based scope or the as per the national or international standard. In case of a demand for adhering to precise quantity, an explicit instruction is necessary, which must be confirmed.

(5.6) The seller has the right to partial deliveries, but is not committed, if the partial deliveries are reasonable for the customer. Partial deliveries can be invoiced separately.

(5.7) The customer cannot reject excess or reduced services in a reasonable scope. The complaint of an excess or reduced service does not justify the rejection of further deliveries from the same or from another contract. In case of custom-made products the seller reserves an excess or under-delivery of 10% of the ordered quantity. In each case, only the actually delivered quantity is invoiced.

(5.8) Blanket and call orders commit the customer for accepting the total quantity underlying the blanket and call orders. In case no specific call orders result from the contract or from any other agreement, the total quantity of the blanket or call order is to be called within 3 (three) months. If the customer does not adhere to the call dates, the seller has the right to completely deliver the total quantity to his house address and to invoice it 4 (four) weeks after written declaration by indicating the consequences of the omitted call. The rights of the seller from default of the customer remain unaffected.

(5.9) The delivery commitment of the seller is subject to the provision of defect-free and on-time self-delivery, if the seller procures the goods as a whole or parts of product from a sub-contractor. This does not apply, if the seller is responsible for the non-delivery or for the delay.

(5.10) Events, such as those below, for which the seller is not responsible in the scope of the normal operating risk and which make the (partial) delivery essentially difficult or even impossible, entitle the seller to postpone the (partial) delivery by the duration of the hindrance together with suitable start-up time or alternatively to withdraw from the contract. In each case, the customer can demand a declaration from the seller, whether he will deliver within a suitable time period according to the circumstances or whether he will withdraw. The delivery periods gets extended in case of events such as industrial conflicts, strikes and lockouts, regulatory actions, material procurement difficulties, scrap or rework, business disruptions and lack of staff, lack of means of transportation as well as upon occurrence of other unforeseen events, on which the seller has no influence, by the duration of these events.

(5.11) Even in case of dispatch readiness , the customer comes in default of acceptance, if in case of delivery ex-factory/warehouse or agreed upon pick-up obligation the delivery is offered to him by the seller only in writing or else the customer has declared that he will final not accept the delivery.

(5.12) Products reported as ready for dispatch as per the contract must be accepted immediately by the customer. Otherwise, the customer comes in default of acceptance so that the seller - his other rights notwithstanding - has the right either to dispatch the goods at the cost and risk of the customer or to store them and invoice them upon the expiry of a notice period of one week. The same applies, if the goods are not called or not called completely within the decisive call period (see §5.8).

(5.13) For the case that the customer comes in default of acceptance or violates other service or participation duties, the seller has the right to demand the damages caused to him including possible extra expenses.

(5.14) If the customer defaults with the fulfilment of the obligations arising from the aforesaid regulations by more than one month, the seller can - further rights notwithstanding - demand from the customer a contractual penalty of 5 (five) percent of the invoice value instead of contract fulfilment and dispose of the stored goods in any other way under consideration of the interests of the customer or scrap the goods. The contractual penalty is charged at a reimbursement of damages or expenses to be paid by the customer. A bulk discount granted on earlier deliveries based on this contract is then to be paid back later by the customer.

(6.1) Delivery periods and dates apply only approximately unless something to the contrary has been agreed upon.

(6.2) The adherence to delivery periods and dates requires the on time fulfilment of the contractual obligations of the customer. Delivery periods start with the date of order confirmation by the seller, but not before clarifying all details of the execution of the order and receipt of all documents necessary for the order execution and other information to be made by the customer as well as the receipt of an advance payment agreed upon. If these requirements are not fulfilled on time, the delivery periods and the dates get extended accordingly. This is not applicable if the delay is caused by the seller. The
delivery period shall be deemed to have been met, if the goods leave the plant or the warehouse at the appointed time or the dispatch readiness of the customer is reported, but the goods cannot be dispatched on time without a fault of the seller. The aforesaid regulations apply accordingly to delivery dates.

(6.3) In case of a later amendment of the order desired by the customer, the seller can demand an appropriate extension of the delivery periods and dates. If the delivery is delayed upon request or by fault of the customer, the goods are then stored at the cost and risk of the customer, unless agreed upon otherwise.

(6.4) Regulatory and other third party approvals, necessary for executing the assets or deliveries e.g. for the purpose of import are to be obtained by the customer. If such approvals are not present at the right time (i.e. at the start of the fulfilment negotiations / acts by the seller) then the delivery period gets extended accordingly.

(6.5) The seller has the right to carry out partial deliveries as well as deliveries before due date and to settle them separately. If the delivery is agreed upon call, the goods are then considered as called latest by three months after placing the order, unless agreed upon otherwise. The customer then has an obligation to accept the delivery, upon whose violation the seller in particular has the right to store the goods with a third party at the cost and on behalf of the customer or to deliver them at the address of the customer.

(6.6) In case of articles manufactured by the seller on order, the customer is obliged to accept the same. It is agreed upon explicitly that in case of a withdrawal of the customer from the contract, the customer must bear the costs accruing till the time of the withdrawal.

(6.7) Unforeseen events not under the control of the seller, such as war, risk of war, unrest, use of violence by third party against persons or objects, sovereign interventions including currency and trade-related measures, industrial actions at the place of the seller or his suppliers or transportation companies, disruptions of the intended traffic connections, fire, scarcity of raw material, shortage of power and other disruptions of the seller through no fault of one's own extend the agreed upon delivery periods and dates by the duration of the hindrance. This also applies, if the seller is already in default of delivery or of the performance hindrances mentioned above were already present before signing the contract, but were not known to the seller. The seller will inform the customer immediately about the hindrances of the aforesaid type.

(6.8) If the delivery delays cause by these factors last for more than two months, both sides have the right to withdraw from the contract. However, the customer can withdraw only when the seller does not declare upon his request within a notice period of one week, whether he will withdraw or delivery within a suitable period. The same right of withdrawal arises independent of the aforesaid period, if the execution of the contract has become unreasonable for one of the parties under consideration of the delay that has occurred.

(7.1) A claim of the customer for return of the goods not needed arises - except for warranty cases or other return obligations resulting from the law - only after a prior written approval of the seller. Return requests, whose net goods value - before sales tax - is less than Euro 15.00 for each item, cannot be accepted and processed. Credit notes or charges resulting from returns can be maximum up to 70 (seventy) percent of the net goods value.

(7.2) In addition, the conditions and conditions set out below shall be complied with pursuant to §§ 7.3-7.6 and no case of § 7.7 shall exist.

(7.3) A return is permitted till maximum 12 (twelve) months after the date of delivery and only by specifying the delivery note or invoice number of the seller.

(7.4) A product currently in the catalogue is to be returned in a flawless state so that it can be resold. A product is to be returned unused, undamaged, in original packing as well as in complete packaging units. The minimum value for accepting each item in the warehouse is Euro 15.00.

(7.5) The return must be reported and confirmed by the seller in writing with a return number. If needed, an inspection of the product is done by the seller at site, which the customer has to allow. The return confirmation of the seller is to be attached with the dispatch. The return is done free of charge. A remuneration is paid via credit note. Only approved articles in a flawless condition are credited. Debit notes of the customer are not permitted.

(7.6) For handling and checking in the scope of the quality management system ISO:9001, the seller charges a lump-sum processing fee of 30 (thirty) percent of the affected goods value. The seller reserves the right to invoice the customer for any additional costs for repackaging and cleaning the goods.

(7.7) Custom-made products, not listed / inactive articles and discontinued types, packaging units with a shortfall and old executions are not taken back.

(7.8) If one of the points mentioned under § 7.7 is relevant, the returned product is scrapped after consulting with the customer and expiry of a suitable period set for the customer.

(8.1) The seller retains the ownership of the delivered objects till the receipt of all payments from the business relationship with the customer. The reservation of ownership also extends to the recognised balance, if the seller posts receivables vis-à-vis the customer in the current invoice (current account retention).

(8.2) The dies, tools, design documents and other similar objects delivered by the seller for executing the order also remain the property of the seller. In particular, no ownership rights follow from the fact that the customer has contributed towards the costs of manufacturing the dies, tools, design documents and other similar objects.

(8.3) The customer is committed, as long as the ownership has not been transferred to him, to handle the purchased object properly and to identify it clearly and permanently as property of the seller. He is especially committed in case of high quality products to insure these at the new value adequately against theft, fire and water damages at his own cost. In case of doubt, the customer must obtain information from the seller. If maintenance and inspection work is to be done, the customer must carry these out on time at his cost.

(8.4) The processing or restructuring of the delivered objects by the customer is done always for the seller as manufacturer as defined in § 950 BGB (manufacturer's clause), but without committing him. If the delivered objects are processed with other objects not belonging to the seller, the seller then acquires the co-ownership of the new object in the ratio of the value of the delivered object to the other connected or joined objects at the time of processing. The object arising from processing must be handled as the goods subject to retention of title.

(8.5) If the delivered objects are processed with other objects not belonging to the seller, are connected or joined inseparably, the seller then acquires the co-ownership of the new object in the ratio of the value of the delivered object to the other connected or mixed objects at the time of connecting or joining. If the
connection or joining is done in a way that the product of the customer is to be considered as the main product, the customer then transfers the co-ownership to the seller proportionately. The offer directed towards this is accepted explicitly.

(8.6) The customer is committed to take charge of the (co-) ownership of the seller free of cost and with proper business care; it is to be treated like goods subject to retention of title. In doing so, the customer is committed to show the care over and above the one he shows in his own matters.

(8.7) Before the transfer of ownership, the product of the seller may neither be mortgaged nor pledged as security without a written permission. The assertion of third party rights on the product is to be informed immediately to the seller. In addition, all information necessary in this case for a possible intervention of the seller is to be given and the documents and other correspondence necessary for this must be handed over. If the customer does not fulfil the requirements, the damages arising from this are charged to the customer. In this case, all claims against the customer become due immediately.

(8.8) As long as the customer goes according to the contract i.e. fulfils his contractual payment obligations, the customer has the right to sell further or use the delivered objects in the scope of proper business transaction and to collect the corresponding receivables after assignment of claim. Otherwise, the authorisation can be revoked. If the goods are sold before paying the receivables of the seller, the customer is then committed to preserve and secure the ownership rights of the seller till the complete repayment of the receivables. To do this, he surrenders all receivables to the seller (the receivables arising from the resale as well as the ancillary rights and security interests of the customer from the resale, and possible indemnity claims owing to damage and destruction of the goods subject to retention of title, which also includes an insurance sum in place of the retention of title) amounting to the final invoice amount (including VAT), which accrue for the customer from the resale to his customers or to third parties, regardless of the fact whether the delivery objects have been resold without or according to the agreement. The assignment of claim is accepted here explicitly. In case co-ownership of the customer is sold, the assignment of claim of the receivable extends to the amount, which matches the share value of the seller. The customer is authorised to collect the receivables even after surrendering them. The authority of the seller to collect the receivable himself remains unaffected by this; however, the seller is committed not to collect the receivable as long as the customer fulfils his payment obligations in a proper way and does not come in default of payment. In each case the seller can demand that the customer discloses the collected receivables and their debtors as well as provides all information necessary for the collection, hands over all the documents necessary for this and notifies the surrender to the debtors (third parties). In this case the seller - other rights notwithstanding - is especially entitled to take the delivered objects (or their substitutes) provisionally at the cost of the customer and to utilise the delivered objects (or their substitutes) after giving reminders according to dutiful discretion, whereby a corresponding credit (minus the costs of utilisation) is granted to the customer.

(8.9) The customer has no right to the other dispositions over the goods subject to retention of title, in particular to a hypothecation or a security pledging. The authorisation of the customer can further be revoked by the seller in case of violation of duties from §§ 3, 8 as well as non-payment of the invoice. In these cases, the processing of the goods subject to retention of title and their connecting or joining with other products is also prohibited to the customer as well as the seller has the right to take back the delivered objects; the customer is committed to surrender / take the goods back. The taking back of the delivered objects by the seller implies a withdrawal from the contract. A withdrawal from the contract also lies in the garnishment of the delivered objects. In case of garnishments or other third party interventions, the customer must inform the seller immediately in writing.

(8.10) Apart from this, the seller can, if the customer defaults with his payment obligations vis-à-vis the seller for longer than three months, demand the goods subject to retention of time at the cost of the customer and collect the receivables and other claims surrendered to the seller. Moreover, the seller can - if there is still a security interest of the seller - utilise the goods subject to retention of title for satisfying his claims according to discretion as per the duty at the cost of the customer. The profit gained with the deduction of the utilisation costs is offset against the open receivables of the seller vis-à-vis the customer –starting with the latest receivable that is due.

(8.11) The seller is committed to release the securities, to which he is entitled upon request by the customer to the extent that their value exceeds the receivables to be secured, in case these are not compensated, by more than ten (10) percent.

(8.12) With the repayment of all claims of the seller by the customer, all surrendered claims along with ancillary rights and security interests are transferred again to the customer.