Terms and conditions

General terms of delivery and payment of NEHER PLUS GmbH, Ostrach-Einhart, Germany

§ 1 General

• Our terms and conditions only apply as part of commercial business relations. The conditions of the customer are not accepted by us unless express consent in writing is in place.
• These conditions also apply for repeat and follow-up orders as part of on-going business relationships.
• All agreements between us and the customer must be formulated in writing or be confirmed in writing. 
  
  

§ 2 Quotations, documents

• Our quotations are strictly without obligation.
• All figures, drawings, calculations and product-related documents containing “expertise” remain our property and are subject to copyright law. They may only be made accessible to third parties with our agreement. 
  
  

§ 3 Prices, terms of payment

• Our prices are strictly “ex works”. Packaging and any transportation costs are billed separately. 
• We invoice statutory VAT at the rate to be disclosed on the invoicing date.
• Our invoices are due within 30 days of the invoice date. If a discount is expressly agreed, it can only be claimed when our invoice is settled within 10 days of the invoice date. Punctuality of the payment depends on the cash receipt by us.
• The customer can only offset its own claims against our claims when these customer claims are ascertained to be indisputable or legally binding. To exercise a right of retention, the customer is only authorised insofar as its counter-claim is ascertained to be legally binding or is indisputable and is based upon the same contractual relationship.
• We are authorised to assign claims against ordering parties in Germany and EU countries for refinancing to abcfinance GmbH, Kamekestr. 2-8, 50672 Cologne, Germany. 
  
  

§ 4 Delivery

• Deliveries of goods are strictly ex works. When goods are shipped, it is at the customer’s expense and risk. 
• We are entitled to send partial shipments provided this is not unacceptable to the customer under the terms of the contract.
• Once a delivery time is agreed, we are only bound by it once the customer has answered promptly, on time and properly all of the technical questions put to the customer.
• In the event the customer breaches its obligations to cooperate or defaults on its obligations, we are entitled to claim the damages resulting for us from the customer.
• In the event we are unable to keep to a delivery date due to force majeure (unforeseeable event over which we have no control), the delivery date is extended by the duration of the unforeseeable event including its consequences.
• In the event that, through no fault of our own, we do not take delivery in time of the goods required for the contract, we are exonerated from our delivery obligation unless we are able to source replacement goods from other suppliers at acceptable conditions.
• In the event of delivery delays, we are liable in principle in accordance with legal regulations in consideration of § 8 of these general terms and conditions, with the following proviso: we assume unlimited liability in the event of personal injury, bodily harm or damage to health and for accepting guarantees. Otherwise we are liable for ordinary and petty negligence for damages caused by delay, limited to the extent that the customer can, for every completed week of the delay, claim 0.3% (but a maximum total of 5%) of the price for the part of the delivery the customer can only use belatedly due to the delay. The right of withdrawal is not affected by these regulations.
• If the customer does not take delivery of the goods within the time prescribed, we are entitled to charge to the customer the expense incurred for storage after the customer is reminded about taking delivery of the goods. We are able to invoice a fixed amount for this storage – but amounting to a minimum of 0.5% of the price of the goods in question and no more than 5% of the total price. The customer has the right to verification that lower storage costs, or none at all, accrued. 
  
  

§ 5 Passing of risk

• The risk of accidental perishing or incidental deterioration passes to the customer from the time we have readied the goods for pick-up or sending at the factory. 
  
  

§ 6 Liability for defects

• The customer’s claims arising from a defect presuppose that the customer has properly met its obligations to investigate and notify about defects as laid down in § 377 of the German Commercial Code (HGB).
• In the event a delivery item exhibits a deficiency, we are entitled to choose supplementary performance in the form of deficiency rectification or delivery of a new item that is free of defects. In both cases, we are obliged to bear all expenses, in particular transportation, handling, work and material costs required for the purposes of supplementary performance provided they are not increased by the delivery item being transported to a location different to the place of fulfilment. If supplementary performance fails to materialise, the customer is entitled to choose withdrawal or reduction.
• We are liable in accordance with legal regulations should the customer claim compensation for damages based upon intent or gross negligence, including intent or gross negligence on the part of our representatives or auxiliary persons. In the event we are not charged with any wilful breach of contract, liability for compensation is limited to foreseeable damage typically occurring. 
• In particular, we are also liable in accordance with legal regulations should we culpably breach a key contractual obligation – in this case too however liability for compensation is limited to foreseeable damage typically occurring. Key contractual obligations are obligations the fulfilment of which renders possible proper execution of the contract in the first place, the breaching of which endangers the purpose of the contract, and on which the customer regularly relies upon. Liability due to culpable personal injury, bodily harm or damage to health remains unaffected; this also applies for mandatory liability as laid down in the Product Liability Act.
• Liability is excluded if nothing different is ruled above.
• The period of limitation for deficiency claims is 12 months, calculated from the transfer of risk. 
  
  

§ 7 Defective title and rights of third parties 

1. It is our obligation to render the delivery at the place of fulfilment free of industrial property rights and copyrights of third parties. Our liability is restricted to the notice period set in § 6 III. Liability on our part is excluded completely when the customer sets the cause for the breach as third party through special requirements. The same applies when the customer changes our delivery or uses it in conjunction with products not delivered by us and as a result there is a breach of third party rights.
   
   

§ 8 Extended liability 

• Extended liability for compensation for damages as set out in § 6 is excluded without regard for the legal nature of the claim asserted. This applies in particular for claims for damages from negligence on contract conclusion, due to other breaches of obligation or due to tortious claims for compensating for material damage as laid down in § 823 Civil Law Code (BGB).
• The limitation in Paragraph 1 also applies if the ordering party, instead of a claim for damages, requests reimbursement of useless expenditure instead of the payment.
• If liability for compensation on our part is excluded or limited, it also applies for the personal liability for compensation of our workforce, employees, co-workers, representatives and auxiliary persons. 
  
  

§ 9 Retention of title

• We reserve the right to ownership of the goods delivered until such time that all payments from the business relationship with the customer have been received. In the event the customer acts contrary to the contract, in regard to delayed payments in particular, we are entitled to take back the delivered goods. The return, or assertion of the retention of title, requires no withdrawal. In these actions or seizure of the goods delivered by us, there is no withdrawal from the contract unless we explained this expressly in writing. After taking receipt of the goods delivered, we are authorised to use the goods. The proceeds are applied towards the customer’s accounts payable – after deduction of appropriate  processing costs.
• The customer commits to treating the delivered goods with due care and attention, and on our request to insuring them adequately against damage for the duration of the title retention. The customer cedes to us now claims against the insurance. 
• Seizure or confiscation of the reserved goods on the part of third parties must be communicated to us immediately in writing so that we can take legal action as laid down in § 771 of the German Civil Procedure Code (ZPO). If the third party is not in a position to reimburse to us the judicial and extrajudicial costs of legal action as in § 771 of the German Civil Procedure Code (ZPO), the customer alone is liable for the default arising for us.
• The customer is authorised to sell on the delivered goods as part of an ordinary business transaction; the customer surrenders to us now all claims amounting to the final invoice amount (including VAT) accruing to the customer from the sale on to the buyer or third party irrespective of whether the delivered goods are sold on without or following processing. For the collection of these receivables, the customer remains empowered even after the assignment; our authorisation to collect the receivables ourselves remains unaffected here. We commit however to not collecting the receivables provided the customer complies with its payment obligations from the revenues collected, is not in payment default and in particular there is no stoppage of payments or application to open insolvency proceedings. In the event the obligation for non-collection does not apply, we can insist that the customer discloses to us the receivables surrendered and their debtors, gives all particulars about the collection, surrenders the associated documents and communicates the assignment to the debtors.
• Processing or transformation of the delivered goods by the customer is always performed for us. If the delivered goods are processed with other objects not belonging to us, we acquire joint ownership of the new object in the ratio of value of the delivered goods to value of the other processed objects at the time of processing. Incidentally, the same applies for the object arising from processing as for the goods delivered conditionally.
• If the delivered goods are mixed inseparably with other objects not belonging to us, we acquire joint ownership of the new object in the ratio of value of the delivered goods to value of the other objects mixed at the time of mixing. If mixing is such that the object of the customer is to be deemed the main object, it is agreed that the customer passes to us co-ownership on a proportionate basis. The customer safeguards for us the sole or co-ownership arising.
• To safeguard our receivables, the customer also relinquishes all receivables due to it from third parties, including ancillary rights, accruing for linking the delivered goods with property.
• We commit to releasing the securities due to us on request of the customer to the extent that the realisable value of the securities exceeds the receivables to secure by more than 20%; the selection of the securities to release is incumbent upon us.
• If the right under which the delivery item falls does not permit retention of title, we can exercise all rights we are able to reserve for the delivery item. The customer commits to collaborating in steps we want to take to protect our right of ownership or in its place another security interest for the delivery item. 
  
  

§ 10 Obligation of return 

• If the delivered tool is relinquished to the customer with the proviso that the customer commits to returning the base body to us after using the tool, this return must be in undamaged form. If this return agreement has become an integral part of the contract with the customer, the regulations in § 1 to § 8, and § 11, of these general terms and conditions apply accordingly. The following regulations apply in addition::

• If the customer does not return the base body after using the tool, the customer commits to compensation for lost value when a deadline set by us for return of the base body is allowed to pass without action. The appropriate value of the base body must then be refunded to us by the customer. 
• If a base body is damaged when returned, we are not obligated to make available the base body to the customer for repair, instead we are authorised to invoice the customer the repair costs; if the damage represents a total loss, the customer must compensate for the lost value as in Section 1 of this provision.
• If tools are not used and returned by the customer by an appropriate deadline following delivery, we are authorised following the setting of a deadline to withdraw from the contract and seek compensation for damages. 
  
  

§ 11 Place of fulfilment, court of jurisdiction, applicable law

• The head office of our company applies as the place of fulfilment for all rights and obligations from the contractual relationship.
• For all legal disputes, Bad Saulgau district court or Ravensburg regional court is agreed solely as the court of jurisdiction depending on the sum in dispute.
• The contract language is German only. Only the laws of the Federal Republic of Germany apply in the contractual relationship between ourselves and our customer.

As of: June 2015