General terms and conditions

1. Effectiveness of the terms and conditions of sale, delivery and payment

1.1 Our General Terms and Conditions of Sale, Delivery and Payment (“Terms”) shall apply exclusively. Our Terms and Conditions shall apply even if we do not expressly refer to them in an individual case. They shall be accepted by the Purchaser at the latest by placing the order or accepting the delivery.

We do not accept any terms and conditions of the Purchaser which we do not expressly accept in writing, even if we do not expressly object to them.

1.2 Verbal collateral agreements, deviations from these terms and conditions as well as supplements to or exclusion of these terms and conditions as well as warranty and assurance declarations by our employees or representatives shall require written confirmation in order to be legally effective. This shall also apply to the waiver of this written form requirement.

1.3 The Orontec logo and the name Orontec are registered trademarks of Orontec GmbH & Co. KG.

2. Offers

Our offers are subject to change. We expressly reserve the right of prior sale.

3. Price basis

3.1 Prices are quoted in Euro ex works, excluding packaging. Orders for which we have not expressly agreed fixed prices shall be invoiced at the prices valid on the day of delivery. If there is a change in the collectively agreed wages, salaries, material or energy costs up to the delivery date, we reserve the right to adjust the prices accordingly. The prices are not binding for repeat orders.

3.2 Any changes in the agreed foreign currency or the exchange rate in Euro occurring after conclusion of the contract shall affect the Purchaser.

3.3 If additional costs included in the price, such as freight, consular fees, etc., increase after the order confirmation has been sent or if such additional costs are newly incurred, these additional costs shall be borne by the purchaser.

3.4 The statutory value added tax is not included in the prices; it will be shown separately in the invoice at the statutory rate on the date of performance.

4. Delivery periods, delivery dates

4.1 Unless otherwise agreed, delivery periods and delivery dates are to be understood as an approximate determination of the delivery time. Delivery periods shall commence on the date of the order confirmation, but not before all agreed or otherwise required prerequisites have been fulfilled by the Purchaser and all details of the execution have been clarified.

4.2 The delivery period shall be deemed to have been complied with if, by the end of the agreed delivery period, the goods have left the works or, in the case of a possibility of dispatch, notification has been given that the goods are ready for dispatch. In the event of premature delivery, this date and not the originally agreed date shall be decisive.

4.3 Correct and timely self-delivery is reserved.

4.4 The delivery period shall be reasonably extended – even within a delay in delivery – in the event of unforeseen events which we were unable to avert despite exercising reasonable care in the circumstances of the case – irrespective of whether such events occurred at our premises or those of our subcontractors. Obstacles of this kind include, for example, operational disruptions, delays in the delivery of essential raw materials and construction materials, strikes and lockouts.

4.5 In the event of subsequent changes to the contract which may affect the delivery period, the latter shall be extended unless special agreements have been made in this respect. If the obstacles referred to in No. 4.4 occur at the Purchaser’s premises, the same legal consequences shall also apply to the Purchaser’s obligation to take delivery. However, the Purchaser may only invoke these impediments if it notifies us immediately.

5. Force majeure

In the event of force majeure, we shall be released from our delivery obligation without the customer being able to derive any rights from this.

6 Shipping and transfer of risk

6.1 If the goods are shipped at the request of the purchaser, the risk of accidental loss and accidental deterioration of the goods shall pass to the purchaser upon their delivery to the shipping agent, but no later than upon their leaving the factory, regardless of whether the shipment is made from the place of performance or who bears the shipping costs. If the goods are ready for shipment and the shipment or acceptance is delayed for reasons for which we are not responsible, the risk shall already pass to the customer upon notification of readiness for shipment.

6.2 The type of shipment shall be at our discretion, whereby we shall take into account any special wishes of the customer as far as possible.

7. Acceptance of the goods

7.1 Acceptance of the goods by the Purchaser or the Purchaser’s representative at the supplying plant shall only take place upon express agreement that the goods are ready for shipment. The acceptance costs (including certificates) shall be borne by the Purchaser.

7.2 After acceptance of the goods, notification of defects which can be detected during the agreed type of acceptance shall be excluded.

7.3 If the acceptance is not carried out, not carried out in time or not carried out completely, we shall be entitled to dispatch or store the goods without acceptance at the expense and risk of the Purchaser. The goods shall then be deemed to have been delivered in accordance with the contract in all respects upon dispatch or storage.

8. Partial deliveries, call orders

8.1 We shall be entitled to make partial deliveries insofar as these are reasonable for the customer; each partial delivery shall be deemed to be an independent delivery.

8.2 In the case of call-off contracts, the customer shall be obliged to notify us of call-offs in good time. In the event of untimely acceptance or untimely call-off by the Purchaser, we shall be entitled, without prejudice to our claim to performance and other rights, to demand reimbursement of our additional expenses for the unsuccessful offer and to store the goods at the Purchaser’s expense and risk. In the case of storage on our own factory premises, we are currently entitled to an expense allowance of Euro 0.14 per m² (net) made available for each day of storage, unless the customer can prove to us that only a lower expense was incurred. If the orderer does not call off or allocate the goods in due time, we shall furthermore be entitled, after having set a grace period to no avail, to allocate and deliver the goods ourselves or to withdraw from the part of the contract not yet fulfilled and to claim compensation for the damage incurred by us as a result, including loss of profit.

9. Weights, quantities, dimensions

In the case of custom-made products according to samples or drawings, excess or short deliveries of the ordered quantity within the scope of ± 10% are permissible. The weights and quantities determined by us shall be decisive for the calculation.

10. Terms of payment, set-off and rights of retention

10.1 Our invoices are payable net within 30 days of the invoice date.

In case of overdue payment, interest shall be charged at a rate of 8 percentage points above the respective base interest rate of the European Central Bank.

10.2 Bills of exchange shall only be accepted on account of performance without any guarantee of protest, and only by agreement and subject to their discountability. Discount charges, collection charges and interest shall be calculated from the date on which the invoice amount is due and shall always be due immediately.

10.3 All our claims, including those for which we have accepted bills of exchange, shall become due immediately if the terms of payment are not complied with, if the customer experiences payment difficulties or if we become aware of other circumstances which are likely to reduce the creditworthiness of the customer and jeopardize our claims against the customer. We shall then also be entitled to perform outstanding deliveries and services only against advance payment or provision of security or to withdraw from the contract after a reasonable period of grace and to assert claims for damages.

10.4 We shall at all times be entitled to securities of the type and scope customary for our claims, even if they are conditional or limited in time.

10.5 The customer shall only be entitled to set-off claims and rights of retention if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Otherwise, he shall only be entitled to exercise these rights to the extent that his counterclaim is based on the same contractual relationship.

11. Retention of title

11.1 Delivery within Germany

11.1.1 The delivered goods shall remain our property until full payment of all claims arising from the business relationship with the Purchaser. The inclusion of individual claims in a current invoice as well as the striking of a balance and the recognition thereof shall not affect the retention of title. Payment shall be deemed to have been made upon receipt of the equivalent value by us.

11.1.2 The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. However, he shall not be permitted to pledge the goods or assign them as security. The Purchaser shall be obliged to secure the rights of the conditional seller when reselling the conditional goods.

11.1.3 The Purchaser hereby assigns to us the claims arising from the resale of our reserved goods; we accept this assignment. Notwithstanding the assignment, the customer shall be entitled to collect the claims as long as he fully and punctually meets his obligations towards us and his financial situation does not deteriorate in such a way that our claims are endangered. At our request, the customer shall provide us with the information on the assigned claims required for collection and notify the third-party debtors of the assignment.

11.1.4 Any processing or treatment of our goods subject to retention of title shall be carried out by the customer on our behalf as manufacturer without any obligations arising therefrom for us. We shall acquire ownership of the manufactured intermediate and finished products; the Purchaser shall merely be the custodian. This shall also apply if the new products are more valuable than the goods subject to retention of title, but the processed goods subject to retention of title shall serve as our security only to the extent of the value of the goods subject to retention of title delivered under retention of title. In the event of processing, combining or mixing of the reserved goods with other goods not belonging to us, the resulting co-ownership of the new product shall pass to us in the ratio of the value of the reserved goods to the other processed goods at the time of processing, combining or mixing. If the Customer acquires sole ownership of the new item, the contracting parties agree that the Customer shall grant us co-ownership of the new item in proportion to the value of the processed or combined, mixed or blended goods subject to retention of title and shall hold them in custody for us free of charge.

11.1.5 If the goods subject to retention of title are resold together with other goods, regardless of whether without or after processing, combining, mixing or blending, the advance assignment agreed above shall only apply to the value of the goods subject to retention of title which are resold together with the other goods.

11.1.6 The Purchaser shall inform us without delay of any compulsory execution measures by third parties against the reserved goods or the claims assigned in advance, handing over the documents necessary for an intervention (e.g. seizure protocol). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the Purchaser shall be liable to us for the loss incurred by us.

11.1.7 We undertake to release securities to which we are entitled in accordance with the above provisions at the request of the customer at our discretion to the extent that they exceed the value of the claims to be secured by 10%.

11.1.8 The Purchaser undertakes to maintain the Retained Goods and the items in our co-ownership in proper condition, to insure them against fire and theft and to assign the claims against the insurer to us upon request.

12. Warranty

12.1 The Purchaser shall inspect the received goods for defects immediately upon arrival of the goods at the place of destination. He shall notify us in writing of any obvious defects in the goods immediately upon receipt of the goods, and of any hidden defects immediately upon their discovery. Otherwise, the goods shall be deemed to have been approved. The customer shall give us the opportunity to examine the complaint, in particular to make damaged goods and their packaging available for inspection by us. If he refuses to do so, we shall be released from liability for defects.

12.2 Within the scope of subsequent performance, the replaced goods shall be returned to us.

12.3 If subsequent improvement or replacement is not possible or is refused or does not take place or fails within a reasonable period determined by the customer for other reasons for which we are responsible, the customer may, at his discretion, withdraw from the contract or reduce the purchase price.

12.4 Natural wear and tear, improper handling and overuse of our goods shall release us from any liability.

12.5 Our reasonable costs incurred in connection with unjustified notices of defect shall be paid by the customer to the extent that he knew or should have known that a warranty case did not exist.

12.6 All claims for defects of the Purchaser shall become statute-barred one year after delivery of the goods to the Purchaser.

12.7 For replacement parts and repair, the limitation period shall be 12 months in the event that we were obliged to provide subsequent performance. However, it shall run at least until the expiry of the original limitation period for the goods.

12.8 Claims of the customer shall remain unaffected insofar as we have assumed a guarantee for the quality or durability of the delivered goods. The scope of our liability shall be determined by the content of the guarantee given by us.

13. Claims for damages

13.1 Claims for damages by the purchaser, irrespective of the legal grounds, in particular due to breach of obligations arising from the contractual obligation or from tort, shall be excluded subject to the following provisions.

13.2 This shall not apply insofar as we are subject to mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health or breach of material contractual obligations (i.e. obligations the fulfillment of which is essential to the proper performance of the contract and compliance with which the customer may regularly rely on). However, the claim for damages for the breach of essential contractual obligations shall be limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or we are liable for injury to life, body or health. A change in the burden of proof to the detriment of the purchaser is not associated with the above provisions.

13.3 The above provisions shall apply mutatis mutandis to direct claims of the customer against our legal representatives or vicarious agents.

14. Warranty for machining orders

Sections 12 and 13 shall apply to machining orders subject to the following provisions:

14.1 The Purchaser shall be responsible for ensuring that the pieces to be machined are delivered in the intended condition and also of the intended material. The pieces must not have hard spots or other defects that would make processing more expensive. If these requirements are not met, we shall charge additional costs for processing and for tools that have become unusable. Furthermore, we shall be entitled to reimbursement of our expenses if the parts prove to be unusable during processing.

14.2 We undertake to carry out the work carefully and properly. The customer shall deliver the parts to be machined to our works free of charge. If a delivered piece becomes unusable due to processing errors, we shall be prepared to process a replacement piece to be delivered free of charge to the extent of the original order. We shall not be obliged to deliver a replacement piece.

14.3 We must be notified in writing of any defects discovered immediately after receipt of the workpiece.

Our warranty and replacement obligation shall only extend to the processing to the extent accepted. Any further claims shall be excluded.

15. Property rights of third parties

15.1 If the subject of the order is products whose design and composition features are specified to us by the Purchaser, the Purchaser shall be solely responsible for ensuring that the design or composition does not infringe any third-party property rights.

15.2 In the event of a claim by a third party, the Purchaser shall indemnify us upon first request against the claims of the third party.

16. Final provisions

16.1 Place of performance is Dortmund.

16.2 The exclusive place of jurisdiction shall be Dortmund. We shall also be entitled to sue the Customer at the Customer’s place of business.

16.3 German law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

16.4 Commercial clauses shall be interpreted in accordance with INCOTERMS.

16.5 Should any provision of these Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected thereby. The parties shall be obliged to replace the invalid provisions by a provision which comes as close as possible to the invalid provision in terms of economic success.