1. General information

All our deliveries are subject to the general terms and conditions of sale and delivery of Helmut Abel GmbH as stated below. They shall therefore also apply to all future business relationships, even if not explicitly agreed on an individual basis. We herewith object to any counter-confirmations by the Purchaser regarding its own terms and conditions of business and purchase. They shall also not become part of the agreement on the grounds of Helmut Abel GmbH’s failure to mention them or deliveries of goods.They, as well as any other deviating agreements, shall rather be approved separately and in writing by Helmut Abel GmbH on an individual basis. The legal provisions of the German Civil Code (Bürgerliches Gesetzbuch – BGB) and German Commercial Code (Handelsgesetzbuch – HGB) shall also apply.

2. Conclusion of agreement

Orders shall only be deemed to have been approved by us once we have confirmed them in writing. Verbal and telephone orders as well as agreements, addendums and amendments to an order shall be approved in writing by us to become legally binding. The purchaser’s receipt of the delivery note / invoice or delivery of the goods shall also be classed as confirmation. Our offers are non-binding. Drawings, images, measurements and weights shall only be binding if explicitly agreed in writing.

3. Prices

The prices stated in the current price list shall apply. Old price lists shall become ineffective upon publication of a new price list.All prices stated and listed exclude statutory VAT, unless specifically stated. Unless stated otherwise, the Seller shall be bound by prices specified in its offer for 30 days from date of offer. All prices are ex works and exclude packaging.

4. Risk transfer

During dispatch, including non-freight deliveries, the risk shall be transferred to the Purchaser as soon as we have delivered the goods to the carrier, freight forwarder or other person or organisation appointed to perform the dispatch.
When supplying the goods for collection, the risk of accidental destruction and deterioration shall be transferred to the Customer, but not before notification has been issued that the goods are ready for collection.

5. Payment terms

Our invoices shall be payable in full within 30 days from date of invoice. We may deliver goods cash on delivery without this requiring approval by the Purchaser. We shall grant a 2% discount on cash payments received within eight days from date of invoice or payments made via direct debit. Default interest in the amount of the standard bank interest, but no less than 6% above the applicable discount rate of the European Central Bank, shall be applied to all late payments. Payments shall only be deemed to have been made once we have full access to the amount paid. Cheque payments shall be deemed to have been made once the cheque has cleared. Notwithstanding any contrary provisions of the Purchaser, we may offset payments against any outstanding debts of the Purchaser. In the event of costs and interest having been incurred already, we may first offset payments against any costs, then against interest, and finally against the actual payment due.

6. Complaints

The Customer shall inspect the delivered goods for obvious defects immediately upon receipt. Complaints may only be raised within eight days from receipt of goods. Complaints about processed goods shall not be permitted in any case.

7. Warranty

We may choose, at our discretion, to rectify any warranty claims raised by the Customer, including claims from warranty contractually assumed by us, by either subsequently repairing the goods or supplying replacement goods. The Customer may request rescission of the agreement (redhibition) or reduction of the purchase price (mitigation) if we fail to subsequently repair the goods or supply replacement goods within a reasonable period of grace granted by the Customer and also fail to perform these services within a further period of grace to be granted by the Customer. The same shall apply in the event of the subsequent repair of goods or supply of replacement goods being unsuccessful. A reasonable period of grace shall also be granted in this event. The request for rescission shall be placed in writing to become legally effective. Should it be impossible or impracticable for us to provide the warranty services, or should we refuse to do so, the right to rescind the agreement or reduce the purchase price (mitigation) may be enforced without any period of grace.
Warranty and guarantee claims shall be exclusive granted to the Customer and may not be assigned.
Warranty claims and service provided under guarantee shall be forfeited if the Customer or persons engaged by the Customer have handled the goods in an inappropriate manner. No warranty shall be granted on model and quality deviations which are to be accepted in accordance with customary trading practices.
Warranty and guarantee claims based on defective deliveries by Helmut Abel GmbH shall only exist to the extent that Helmut Abel GmbH has corresponding claims against its suppliers.
Helmut Abel GmbH may hold itself harmless against all warranty claims raised by its Purchaser by assigning the warranty claims against presuppliers if Helmut Abel GmbH can enforce the warranty claims of the Purchaser against such presuppliers. The warranty period is two years from date of delivery. In any case, the warranty period shall expire once the goods are processed or treated.

8. Retention of title

The ownership of the delivered goods shall only be transferred to the Customer once all of our receivables payable by the Customer have been settled in full, even if such receivables arise from other conclusions of transactions, deliveries or any other legal reason. In the event of goods subject to retention of title being sold on, they shall be replaced with receivables due to the Customer from its customers on the grounds of such sale. Should the customer of the Customer demand the right to approve the assignment of the receivables due from the customer, the Customer may only sell on the goods if it obtains such consent from its customer or if we explicitly approve the sale of the goods without the consent of the Customer’s customer. The Customer may collect the receivables assigned when selling on the goods despite such assignment. Helmut Abel GmbH may also collect such receivables regardless of the Customer’s entitlement to do so. However, Helmut Abel GmbH shall not collect the receivables as long as the Customer meets its payment obligations. Upon our request, the Customer shall disclose the debtors of the assigned receivables and notify them of the assignment. Such request shall not require any special reason. Should the Customer obtain replacements for goods subject to retention of title by Helmut Abel GmbH, the retention of title shall apply to such replacement goods. In the event of the replacement goods being part of a total unit, the retention of title shall apply on a pro-rata basis.
Mixing goods subject to retention of title with goods that are not subject to retention of title by us shall result in Helmut Abel GmbH becoming co-owners of the resulting goods. The same shall apply if goods subject to retention of title are combined. When processing or restructuring goods subject to retention of title by us, we shall be classed as the manufacturer within the meaning of Section 950 BGB and acquire the original ownership in the goods created by such processing or restructuring activities.Goods delivered subject to retention of title shall not be pledged or used as collateral prior to payment for them having been received.

9. Liability

Claims for damages raised by our customers on the grounds of culpability at the time of conclusion of agreement, violation of ancillary contractual obligations, contractual obligations to provide protection and prohibited actions shall be excluded, unless caused by acts of malicious intent or gross negligence.

10. Delivery periods

We shall class delivery dates and periods as estimates only. Our obligation to deliver goods shall be suspended as long as the Purchaser defaults on any payment based on transactions concluded with us. Force majeure, disruptions to operations, late deliveries by presuppliers, such as raw materials and energy suppliers, lack of staff, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions, governmental decrees and lack of authorisations issued by government agencies or other authorisations required shall relieve us of our obligation to provide services for the duration of the disruption and within the scope of its effects, unless such disruption has been caused by acts of malicious intent or gross negligence.
We may withdraw from the agreement in the event of unforeseen circumstances within the above meaning significantly altering the economic purpose or content of our services or having a considerable impact on our operations, unless we have caused the disruption through acts of malicious intent or gross negligence. In such event, the Purchaser shall only be entitled to raise counter guarantee claims. Any further claims, particularly claims for damages, shall be excluded. We may provide partial services which may also be invoiced separately.

11. Offsetting

Our receivables may only be offset against counter-claims, or the right to retain the title to goods may only be exercised, if the counter-claim is undisputed or found to be legally binding by a court.

12. Place of fulfilment, place of jurisdiction, governing law

The place of fulfilment for deliveries and payments by both Parties shall be the head office of Helmut Abel GmbH. The place of jurisdiction for all legal disputes shall be the Crailsheim District Court. The contractual relationship between the Parties shall be exclusively governed by the laws of the Federal Republic of Germany under exclusion of the Convention On The Law Applicable To International Sale Of Goods (The Hague, 1955).Should individual provisions of this agreement be or become ineffective, this shall not affect the effectiveness of the remaining provisions.

Frankenhardt, January 2012