The German version shall take precedence over the English translation, which merely serves the purpose of convenience.
Standard Terms and Conditions of Sale and Delivery of Deinzer GmbH
General – Scope of Application
(1) Our Standard Terms and Conditions of Business apply exclusively. We do not accept terms and conditions of the Purchaser that conflict with or differ from our Standard Terms and Conditions of Business, unless we have given our explicit written consent to their applicability. Our Terms and Conditions of Business shall apply, even if we unconditionally make delivery to the Purchaser knowing of its terms and conditions that conflict with or differ from our Terms and Conditions of Business.
(2) All agreements made between us and the Purchaser for the purpose of implementing this contract are recorded in writing in this contract.
(3) Our Standard Terms and Conditions of Business apply only in relation to entrepreneurs as defined by section 310 (1) of the German Civil Code [BGB].
(4) Our Standard Terms and Conditions of Business shall also apply to all future transactions with the Purchaser.
Tender – Tender Documents – Conclusion of Contract
(1) Our tenders are subject to change without notice and are non-binding, unless otherwise indicated in the acknowledgement of the order.
(2) In order to take effect, declarations of acceptance and all purchase orders must be confirmed or acknowledged by us in writing or by telegraph, telefax or telex. The same applies to supplements, amendments and collateral agreements.
(3) Drawings, illustrations, indications of weights and dimensions and other performance data shall only be binding, if explicitly agreed upon in writing.
(4) We reserve ownership rights and copyrights in illustrations, drawings, calculations and other documents. These may not be made accessible to third parties. This particularly applies to written documents designated “confidential”. The Purchaser shall require our explicit written consent prior to passing on such documents to third parties. The obligation of confidentiality shall continue to apply even after this contract has ended. This obligation shall expire when and in so far as the manufacturing know-how contained in illustrations, drawings, calculations and other documents handed over has become public knowledge.
(5) The conclusion of the contract is subject to the precondition that our suppliers supply us properly and in due time. This applies only where we are not responsible for failure to supply, particularly where a congruent covering transaction has been entered into with our supplier.
(6) The Customer shall without undue delay be informed of non-availability of the service. Any consideration paid shall be refunded without undue delay.
(7) The scope of delivery shall be exclusively based on our written acknowledgement of the order.
Special Designs / Submissions / Material
(1) Special designs, i.e. purchase orders from the Customer where the service to be rendered by us differs from the Customer’s previous orders in respect of dimensions, weight, colour, print format etc., and/or new orders shall be subject to a written purchase order, including detailed specifications of materials and dimensions along with print format templates.
(2) In so far as we deliver items made on the basis of drawings, models, samples, print templates or other documents handed over by the Purchaser or using tools or components from the Purchaser, the Purchaser shall warrant that no third-party industrial property rights will be infringed. Such documents handed over by the Purchaser shall be taken as a basis by us. The Purchaser shall be liable for accuracy of content, feasibility and completeness, without us being under any obligation to check such documents (section 14 remains unaffected). This does not apply to data that cannot be processed, nor to data that are unreadable. The Purchaser shall bear additional expenses arising due to the Purchaser requesting modifications after we have sent our acknowledgement of the order or due to the need for additional services on account of unsuitable or incomplete submissions. Prior to transmitting data, the Purchaser shall use the latest updated appropriate anti-virus programmes for protecting against computer viruses. The Purchaser shall be solely responsible for protecting and backing up data. If, by referring to industrial property rights, third parties prohibit us from manufacturing and delivering in particular, we shall – without being under any obligation to examine the facts and the legal position – be entitled to discontinue all further activities in this respect and claim compensatory damages from the Purchaser. The Purchaser shall without undue delay indemnify us against all third-party claims in this connection.
(3) Material delivered to us by the Purchaser for processing or re-working shall become our property when handed over to us.
(4) During processing, we shall continue to own material handed over by the Purchaser and the final product made out of this. Processing carried out by us shall occur in our own name.
(5) We accept no liability whatsoever for loss of or damage to submissions through no fault of our own. The Purchaser shall take out corresponding insurance itself at its own risk.
(6) Products to which the Purchaser is entitled, particularly data and data carriers, shall be filed by us after the final product has been handed over to the Purchaser or its agents in performance only according to explicit agreement and against payment of a separate fee. The Purchaser shall be responsible for insuring such items.
(7) If test parts necessary for testing, or if moulds, tools, equipment etc. for manufacturing, are obtained by us or made by us or on our behalf, the moulds, tools, equipment etc. shall always remain our property. We shall be entitled to invoice the Purchaser for the cost of obtaining or making the aforementioned parts (cf. section 3 (2)). The total sum of reimbursable costs shall be due and payable upon receipt of the invoice. Other rights such as rights of possession, rights of use, rights of exploitation, copyrights etc. shall always remain with us.
The Purchaser’s Duties to Assist
(1) During the entire contractual period, the Purchaser shall be obliged to promptly process technical problemsolving proposals, drawings, concepts and plans through personnel with suitable professional backgrounds, unless otherwise agreed upon.
(2) In so far as test material is necessary for carrying out trial runs or for carrying out an acceptance test on the delivery item, the Purchaser shall make this material available to us in due time at our works at its expense, in the quantity that we consider necessary and in faultless quality.
(3) The above provision shall not affect the Purchaser’s other duties to assist.
Sec. 5 Prices
(1) Unless otherwise indicated in our acknowledgement of the order, our prices apply “ex works”. We reserve the right to charge at the prices and discounts valid on the day of delivery. Our prices are quoted excluding packaging, freight charges, insurance, customs duties, acceptance inspection costs and other expenses.
(2) Our prices do not include statutory value-added tax. Value-added tax shall be separately indicated in the invoice at the statutory rate on the day of invoicing.
(3) If test parts necessary for testing, or if moulds, tools, equipment etc. for manufacturing, are obtained by us or made by us on our behalf, we shall be entitled to invoice the Purchaser for the cost of obtaining or making the aforementioned parts. We shall be entitled to charge for sketches, drafts, specimens, test prints, proofs, modifications to data delivered or transmitted and for similar preliminary work ordered by the Purchaser.
(4) An appropriate advance payment may be demanded for extraordinary preliminary work.
(5) We reserve the right to alter our prices accordingly, if changes in costs arise after the conclusion of the contract, particularly as a result of collective wage agreements or changes in prices of materials. We shall furnish the Purchaser with proof thereof on request.
(1) Unless otherwise indicated in the acknowledgement of the order, the purchase price shall be due and payable net (without any deduction) within 14 days of delivery. The deduction of a cash discount shall be subject to special written agreement. Any agreement on a cash discount shall not apply to freight charges, postage, insurance or other shipping expenses.
(2) Bills of exchange and cheques shall only be accepted on the basis of an explicit agreement and always only as conditional payment. Acceptance of a bill of exchange or a cheque shall not be deemed deferment of payment of the fee. The term of a bill of exchange or a cheque may not be shorter than ten days and may not be longer than two months. Credits by way of a bill of exchange or a cheque shall always be deemed subject to receipt and only with the value date being the day when the equivalent amount is freely at our disposal. We assume no liability for simultaneous submission, nor for protesting, notifying or returning in the event that a bill of exchange or a cheque is not honoured. Discounting or collection charges shall be borne by the Purchaser and shall be due and payable immediately in cash without any deduction.
(3) If payment is not made by the date fixed above or the date agreed upon in the acknowledgement of the order, we shall be entitled to charge default interest at the rate of 10 % p.a. above the respective discount rate (section 247 of the German Civil Code [BGB]) without further requesting payment and without giving notice of default. If we are able to prove that default caused a higher loss, we shall be entitled to claim this. The Purchaser shall be entitled to prove to us that we incurred no loss or a considerably lower loss as a result of default in payment. This shall not affect the right to claim further compensatory damages.
(4) The day when the invoiced amount is freely at our disposal shall be deemed the date of receipt of payment.
(5) The agreed price shall be due and payable immediately, if the Purchaser defaults on other receivables in relation to us, or if we become aware that its financial situation is uncertain due to insolvency, bankruptcy, a court settlement or out-of-court settlement, a protest in respect of a bill of exchange, lawsuits or other circumstances affecting its financial situation, for example if we receive unfavourable reports about the Purchaser. If the performance owed by us has not yet been rendered at the time such circumstances become known, we shall be entitled to demand advance payment, withhold goods not delivered and discontinue further work.
(6) We shall be entitled to cancel the contract and claim compensatory damages, if the Purchaser defaults on payments due, a bill from the Purchaser is protested, the Purchaser’s financial circumstances significantly deteriorate or we receive unfavourable reports about the Purchaser (for example about default in payment or protests in respect of a cheque or a bill of exchange). Prior to making further deliveries, we shall in such cases be entitled to demand advance payment in cash and immediately withdraw from circulation at the Purchaser’s expense all accepted bills of exchange and other bills of exchange and cheques in circulation and demand cash payment for these.
(7) The Purchaser shall have rights of set-off only where its counterclaims have been established by a final and non-appealable court judgement, are undisputed or have been acknowledged by us. Additionally, the Purchaser shall be authorised to exercise a right to withhold payment only to the extent that its counterclaim is based on the same contractual relationship.
Dispatch – Packaging
(1) Dispatch shall occur ex place of delivery on the Purchaser’s account.
(2) Unless otherwise agreed upon, packaging shall be charged to the Purchaser at cost price and shall not be taken back.
(3) Delivery shall be for the Purchaser’s account and at the Purchaser’s risk, even if part deliveries are made, or we have agreed to bear other costs, such as for example shipping expenses or cartage expenses. If no specific dispatch instructions are given or reserved in the case of purchase orders, dispatch shall be effected at our best discretion without assuming any responsibility for carriage at the lowest price or in the quickest way. Particularly with regard to consignments to foreign countries, we assume no liability for compliance with customs regulations and/or packaging regulations. Late instructions or transport blockades shall entitle us to immediately charge for goods ready for dispatch, store such goods in the open air at the Purchaser’s risk and expense or hand them over to a forwarder. With this, our obligation to make delivery shall be deemed fulfilled. We shall take out insurance only at the Purchaser’s explicit request and expense.
(4) Part deliveries shall be permissible.
Passage of Risk
(1) Unless otherwise indicated in the acknowledgement of the order, delivery “ex works” shall be deemed agreed upon.
(2) Risk shall pass to the Purchaser no later than once the consignment has been handed over to the carrier or has left our warehouse for the purpose of dispatch. This shall apply, even if a delivery is made in individual parts.
(3) If dispatch is delayed due to circumstances for which the Purchaser is responsible, particularly if the Purchaser breaches its duties to assist, or if the Purchaser defaults on acceptance, the risk of accidental destruction or accidental deterioration of the delivery item shall pass to the Purchaser on the day when the goods are ready for dispatch. However, we shall be obliged to take out, at the Purchaser’s request and expense, the insurance requested by the Purchaser.
(1) The delivery period stated by us shall begin when our acknowledgement of the order is sent, but not before all technical questions have been cleared up, the documents, permits and clearances to be obtained by the Purchaser have been submitted and any agreed down payment has been received.
(2) Except where otherwise explicitly agreed upon, the delivery period stated by us shall not be binding.
(3) The delivery period shall be deemed met, if the delivery item has left our works or our warehouse, or notification of readiness for dispatch has been given by us, before the delivery period expires.
(4) The delivery period shall be appropriately extended if and as long as the Purchaser fails to meet its duties to assist, particularly the duties under section 4, or if delays are caused by other circumstances for which the Purchaser is responsible. The right to plead non-performance of the contract remains reserved.
(5) If the Purchaser defaults on acceptance or culpably breaches other duties to assist, we shall be entitled to claim compensation for damages resulting to us in this respect, including any and all additional expenses. Further claims remain reserved.
(6) Provided that the prerequisites under subsection (4) are met, the risk of accidental destruction or accidental deterioration of the purchase item shall pass to the Purchaser at such time as the Purchaser has defaulted on acceptance or payment.
(7) a) Even where periods and dates have been bindingly agreed upon, we shall not be responsible for delays in delivery or performance due to force majeure or due to events that make it considerably more difficult or impossible to make delivery. Such events include in particular strike, lockout, official orders or court orders etc., even if these occur at our suppliers or their subcontractors. This shall also apply, if and in so far as it is considerably more difficult or impossible for us to manufacture the items ordered due to extreme weather conditions, particularly for technical reasons (for example if it is impossible to print due to a lack of colour adhesion in high temperatures). Such delays in delivery and performance shall entitle us to defer delivery by the duration of the impediment plus a reasonable start-up period. In important cases, we shall notify the Purchaser of the commencement and cessation of such impediments as soon as possible.
b) Additionally, if it becomes impossible for us to perform the contract due to force majeure, lockout or official orders or court orders etc., the delays in delivery and performance mentioned in section 9 (7) letter a) shall entitle us to cancel the part of the contract not yet performed or the whole contract.
c) If the impediment lasts longer than three months, the Purchaser shall be entitled to cancel the part of the contract not yet performed after having fixed a reasonable additional period. The Purchaser may only cancel the whole contract, if it has no interest in partial performance. If the delivery period is extended, or if we are released from our obligation, the Purchaser shall not have the right to derive any damage claims from this.
(8) If dispatch is delayed at the Purchaser’s request, the Purchaser shall, as from one month after notification of readiness for dispatch, be charged for storage costs incurred, but in the case of storage at our works at least € 10.00 per Europallet for each month (if other auxiliary storage devices are used, the charge shall be converted accordingly based on space). The Purchaser reserves the right to prove that no damages at all have arisen or that the damages incurred were significantly lower than the flat rate. After a reasonable set period has expired to no avail, however, we shall at our option also be entitled to sell the item to a third party and supply the Purchaser within a reasonably extended period.
(9) In so far as the underlying contract is a transaction where time is of the essence, legal regulations shall apply in respect of liability due to default in delivery. The same shall apply, in so far as the Purchaser is entitled to claim that it no longer has any interest in the further performance of the contract due to default in delivery for which we are responsible.
(10) Legal regulations shall equally apply, in so far as default in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. Fault on the part of our representatives or agents in performance shall be attributable to us. Unless default in delivery is not due to an intentional breach of contract for which we are responsible, our liability for compensatory damages shall be limited to foreseeable damages typically occurring.
(11) a)ln so far as default in delivery for which we are responsible is due to a culpable breach of a fundamental duty under the contract, legal regulations shall apply. Unless otherwise provided below, our liability shall however in any event be limited to foreseeable damages typically occurring.
b) In the case of slight negligence, the Purchaser’s entitlement to damages caused by delay shall be limited to 5 % of the agreed price.
(12) In so far as default in delivery is due to a breach of a non-fundamental duty under the contract by slight negligence, liability on our part for default in delivery shall be excluded.
Retention of title
(1) Delivered goods shall remain our property until the receipt of all payments arising from the supply contract and the rest of the business relationship with the Purchaser, including all subsidiary claims such as interest and expenses, even where our receivables do not arise until a future date. If the Purchaser acts in breach of the contract, particularly if it defaults on payment, we shall be entitled to reclaim possession of the goods delivered. Reclaiming possession of the delivery item by us shall not constitute cancellation of the contract, unless we have explicitly declared so in writing. Levying execution on the delivery item by us shall always constitute cancellation of the contract. We shall be authorised to sell the delivery item after having reclaimed possession of it. The proceeds from such a sale shall be credited against the amounts owed by the Purchaser, less reasonable costs in connection with the sale.
(2) The Purchaser shall be obliged to treat the delivery item with care. In particular, the Purchaser shall be obliged to adequately insure it at its own expense against fire damage, water damage and theft at replacement value. In so far as servicing and inspection work is necessary, the Purchaser must carry out such work in due time at its own expense.
(3) If the delivery item is taken in execution or otherwise seized by a third party, the Purchaser shall notify us in writing without undue delay, to enable us to bring an action pursuant to section 771 of the Code of Civil Procedure [ZPO], In so far as the third party is unable to reimburse us for court costs or out-of-court costs in connection with an action pursuant to section 771 of the Code of Civil Procedure [ZPO], the Purchaser shall be liable for the loss incurred by us.
(4) The Purchaser shall be entitled to resell the delivery item in the ordinary course of business. However, the Purchaser hereby assigns to us, in the sum of the final invoiced amount (including value-added tax) of our receivable, all receivables accruing to it against its customers or third parties from reselling, regardless of whether the purchase item has been resold in an unprocessed or a processed state. The Purchaser shall remain authorised to collect such a receivable even after it has been assigned. This shall not affect our authority to collect the receivable ourselves. However, we undertake not to collect the receivable as long as the Purchaser meets its payments from the proceeds received, the Purchaser does not default on payment and, in particular, no petition to commence bankruptcy or composition or insolvency proceedings is filed, and no payments are suspended. If this is the case however, we may demand that the Purchaser notify us of the receivables assigned and their debtors, provide us with all information necessary for collecting the receivables, hand over to us related documents and notify the debtors (third parties) of the assignment of receivables.
(5) Processing or remodelling of the delivery item by the Purchaser shall always be carried out on our behalf. If the purchase item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchase item (final invoiced amount, including value-added tax) to the value of the other processed items at the time of processing. Incidentally, the item created by processing shall be governed by the same terms and conditions as those applicable to the delivery item delivered under reservation of ownership.
(6) If the delivery item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoiced amount, including value- added tax) to the value of the other mixed items at the time of mixing. If mixing occurs in such a manner that the Purchaser’s item is to be regarded as the main item, it shall be deemed agreed that the Purchaser shall transfer co-ownership to us on a pro-rata basis. The Purchaser shall hold in safekeeping for us the solely owned or jointly owned property created in such a manner.
(7) As security for our receivable against the Purchaser, the Purchaser also assigns to us receivables accruing against a third party as a result of the purchase item being connected to real property.
(8) We undertake to release, at the Purchaser’s request, security items to which we are entitled to the extent that the realisable value of our security items exceeds by more than 10 % the receivables to be secured. We shall be responsible for choosing the security items to be released.
Duty to Examine and Give Notice of Defects
(1) For all our deliveries and services the statutory duties in respect of examination and defect notification apply. In case of perceivable defects, incorrect deliveries, or quantity deviations the notification of complaint must be raised immediately, but within five days at the latest. Clause (2) remains unaffected. The period of time in case of self-evident defects is commencing with the day of delivery, in case of not perceivable defects with the time of discovery; regarding the timeliness the receipt of the defect notification by us is decisive. Defect notifications are effective only in written form.
(2) Excess or short deliveries of up to 10% of the quantity ordered are customary in this branch of business and, therefore, cannot be complained about. The actually delivered quantity is invoiced.
(1) The Purchaser’s warranty rights shall be subject to the precondition that the Purchaser has properly and duly met its duties to examine and give notice of defects pursuant to section 11.
(2) We give no warranty for damages arising from unsuitable or improper use, incorrect assembly and/or commissioning or modifications to delivered goods by the Purchase or a third party, normal wear and tear, incorrect or negligent treatment or handling, unsuitable operating material, replacement materials, chemical, electrochemical or electrical influences, unless we are responsible for this.
(3) With regard to colour reproductions in all methods of manufacture, slight deviations from the original may not be complained about. The same applies to comparisons between other submissions (e.g. digital proofs, final proofs etc.) and the final product.
(4) a) If there is a defect for which we are responsible, we shall first be entitled to rectification or replacement (also collectively referred to as “supplementary performance”) solely at our option.
b) The Purchaser shall not be entitled to supplementary performance, if a defect for which we are responsible does not reduce, or only insignificantly reduces, the value or suitability of the delivery item.
c) The Purchaser shall, according to a corresponding agreement, give us the time and opportunity necessary for carrying out all actions in connection with supplementary performance that we consider necessary at our reasonable discretion. The Purchaser shall not be entitled to rectify a defect itself or through a third party and claim from us reimbursement of necessary costs.
d) In the event of supplementary performance, we shall be obliged to bear all expenses necessary for the purpose of rectifying defects, particularly the cost of carriage, transport, labour and materials, unless and in so far as such costs are increased as a result of the delivered goods having been taken to a place other than the place of performance. Replaced parts shall become our property. If supplementary performance fails, if it would be unreasonable to expect the Purchaser to render supplementary performance, if to no avail the Purchaser sets us a reasonable period within which to render supplementary performance, or if it is unnecessary to set such a period in the cases defined by law, the Purchaser shall be entitled to statutory rights subject to compliance with legal prerequisites and the terms set out below.
a) In the event of a minor breach of contract, particularly in the event of minor defects that only insignificantly reduce the value or suitability of the delivery item, the Purchaser shall not be entitled to cancellation of the contract or a price reduction.
b) If, after supplementary performance has failed or after the Purchaser has unsuccessfully set us a period within which to render supplementary performance, the Purchaser chooses to cancel the contract on account of a defect in quality and/or title, the Purchaser shall not be entitled to additionally claim compensatory damages on account of the defect. The same shall apply, if it would be unreasonable to expect the Purchaser to render supplementary performance or if it is unnecessary to set a period within which to render supplementary performance.
c) If the Purchaser chooses compensatory damages in the cases mentioned in subsection (5) letter b), the goods shall remain with the Purchaser, if this is reasonable for the Purchaser. Compensatory damages shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply, if we have fraudulently concealed a defect or have guaranteed the quality of the item.
d) With regard to a claim in respect of a defect in quality or title, we shall in no event be liable beyond the exclusions or limitations of liability defined in section 13.
(6) If the Purchaser receives incorrect or incomplete assembly instructions, we shall merely be obliged to deliver correct and complete assembly instructions, however only if the errors or shortcomings in the assembly instructions render proper assembly impossible.
(7) In general, it is agreed that, where applicable, the product description from the manufacturer shall be taken as a basis for the quality of the delivery item or a component part contained in the delivery item. Moreover, public statements by the manufacturer shall not constitute a contractual indication of the quality of the delivery item or a component of the delivery item.
(8) The warranty period is one year from the date of delivery or, if agreed upon, from the date of formal acceptance or from the date of an action or non-action by the Purchaser that is deemed equivalent to delivery or formal acceptance. This period is a claims limitation period and also applies to claims for compensation for consequential damages caused by a defect, except where tort claims are brought. The statutory claims limitation period shall apply to these.
(9) We do not give the Purchaser any guarantees in the legal sense. This shall not affect guarantees that the Purchaser is granted by third parties, particularly manufacturer’s guarantees.
Liability – Indemnity – Contractual Penalty in Respect of the Purchaser
(1) Legal regulations shall, in respect of our liability, govern damages due to an intentional or grossly negligent breach of duty. The same shall apply to damages based on loss of life or injury to body or health, defects fraudulently concealed and, regardless of who is to blame, damages arising from the giving of a guarantee pursuant to section 276 (1) of the German Civil Code [BGBj. If we give a guarantee for certain qualities of the contractually owed delivery, such a guarantee shall only be binding on us, if we have declared the guarantee in writing.
(2) Where damages are caused by slight negligence at most, we shall be liable only in cases where so-called cardinal duties have been breached. Cardinal duties are fundamental duties decisive for the conclusion of the contract by the Purchaser and upon whose performance the Purchaser was reliant. In so far as we negligently breach a duty that is fundamental to the contract, our obligation to compensate for property damage and pecuniary losses shall be limited to the insured sum under our product liability insurance or our liability insurance. We agree to submit to the Purchaser or Customer confirmation from the insurer.
(3) In the cases defined under subsection (2), liability shall be limited to foreseeable damages typical of the contract. Liability for lost profits is excluded.
(4) a) In so far as the causal risk in connection with resulting damages is normally insured by purchasers in the Purchaser’s branch of industry, our liability shall be excluded even in the case of gross negligence.
b) In so far as it is customary in this branch of industry to take out comprehensive insurance for damaged goods, our liability shall be excluded in the case of slight negligence on the part of our statutory representatives, managerial employees and other agents in performance and in the case of gross negligence on the part of our other agents in performance, even if it concerns a breach of duties fundamental to the contract.
(5) The above limitations of liability and releases from liability defined in section 13 subsections (2) to (4) shall not apply to claims of the Purchaser arising from the Product Liability Act [Produkthaftungsgesetz]. Furthermore, they shall not apply to injury to body and/or health attributable to us, loss of life attributable to us, damages due to fraudulently concealed defects nor to damages arising from the giving of a guarantee pursuant to section 276 (1) of the German Civil Code [BGB].
(6) No reversal of the statutory burden of proof is associated with the above provision in section 13 subsections (1) to (5).
(7) In so far as our liability is excluded or limited under the above provisions, this shall equally apply to the personal liability of our executive bodies, employees, workers, staff members, representatives and subcontractors.
(8) Except with our prior explicit written consent, the Purchaser shall not be entitled to wholly or partly deliver our products to the United States of America (USA) or to Canada (direct delivery), nor to pass on our products to a third party where the Purchaser is aware that the third party will wholly or partly deliver our products to the USA or to Canada (indirect delivery).
(9) In any event of direct or indirect delivery to the USA or Canada, whether with or without our consent, the Purchaser shall be obliged to indemnify us on first request against all claims, particularly those based on product liability, that third parties bring against us in connection with the direct or indirect delivery of our products.
(10) Furthermore, the Purchaser shall be obliged to take out in our favour and at the Purchaser’s expense adequate product liability insurance, i.e. appropriate product liability insurance that meets US-American and Canadian standards, and shall furnish us with proof of such insurance prior to the direct or indirect delivery of our products.
(11) For every case of a breach of the Purchaser’s obligations under subsections (9) to (10), the Purchaser shall be obliged to pay to us a contractual penalty in the sum of € 10,000.00.
Liability in Relation to Third Parties / Indemnity
If and in so far as we deliver items according to the Purchaser’s specifications, the Purchaser shall on first request indemnify us against all third-party claims that third parties bring against us pleading that they have incurred damages as a result of the item manufactured by us. The Purchaser’s obligation to indemnify shall apply only to the extent that the Purchaser’s specifications caused the damage incurred by the third party.
Place of Jurisdiction and Performance
(1) In so far as the Purchaser is a merchant, our principal place of business is the place of jurisdiction. However, we shall be entitled to also bring an action against the Purchaser at the court where the Purchaser’s domicile is situated.
(2) The laws of the Federal Republic of Germany apply, excluding the UN sales law.
(3) Unless otherwise indicated in the acknowledgement of the order, our principal place of business is the place of performance.
Severability Clause – Written Form
(1) If provisions in this contract are or become ineffective, or in any situation not contemplated and covered by this contract, all other provisions hereof shall remain in full force and effect. The invalid, ineffective or unenforceable provision shall be replaced by a provision which is in accordance with what the parties intended in accordance with the spirit and purpose of this contract The aforesaid shall apply mutatis mutandis for any situation not contemplated and covered by this contract.
(2) Amendments and supplements to this contract may only be agreed upon in writing. This also applies to cancellation of this written form requirement.