1.1 The following General Conditions of Sale and Supply shall govern exclusively the contract for the sale and supply of the goods specified overleaf (the “Goods”) by the Seller to the Buyer (the “Contract”). Contrary or different conditions of the Buyer shall be applicable only if and insofar as the Seller expressly consents to them in writing. The Seller’s mere silence with respect to amendments proposed by the Buyer shall not be construed as acknowledgement or consent. The Seller hereby expressly objects to all of the Buyer’s amendments.
2.1 The obligation of the Seller to deliver the Goods by the time or within the period stipulated on the face of the Contract shall be subject to the availability of necessary space on a vessel, aircraft, truck, railway or other means of transportation agreed by the parties hereunder.
2.2 If the Contract is based on F.O.B., F.A.S. or any other terms under which the Buyer is required to secure necessary vessel space, the Buyer shall do so on the basis of berth terms. In case the Buyer shall contract for the carriage of the Goods, the Buyer shall give the Seller due delivery instructions within a reasonable time prior to delivery, so as to enable the Seller to have the Goods ready for delivery. Failure of the Buyer to give such instructions in time is a breach of the Contract and the Seller, for the account and at the risk of the Buyer, may, at its discretion either:
(i) contract for the carriage of the Goods and make delivery;(ii) arrange for the storage and/or dispose of the Goods; or
(iii) terminate the Contract or any part thereof,
without prejudice to any other rights and remedies the Seller may have.
2.3 In case of delivery in instalments, any delay or failure in delivery of one lot shall not be deemed a breach of the Contract giving rise to a right of the Buyer to cancel the Contract or refuse to accept the performance with respect to the other lots unless the partial performance is of no interest for the buyer.
2.4 The risk of loss of the Goods shall pass to the Buyer when the Seller delivers the Goods to a carrier, provided that if such a trade term as contained in the Incoterms of the latest edition (the “Incoterms”) is used on the face of the Contract in connection with the delivery terms, the risk of loss of the Goods shall pass in accordance with the provisions of the Incoterms.
2.5. For the purpose of these General Conditions of Sale and Supply, the term “delivery” or “deliver” shall mean “shipment” or “ship”, in case the Contract is based on F.O.B., C.F.R. or C.I.F.
2.6 Early deliveries are permitted under the Contract unless they are carried out at unreasonable times.
2.7 In the event of delay in delivery, including, but without limitation to, any deviation in the quantity of the Goods delivered, the Buyer shall set a reasonable extension period upon expiry of which the Buyer may terminate the contract partly or entirely. Damages instead of performance of the contract is only available to the Buyer within the limits set out in Clause 9 below.
3.1 If payment for the Goods is to be made by letter of credit, the Buyer shall, unless otherwise specified, establish in favour of the Seller an irrevocable letter of credit on terms satisfactory to the Seller negotiable on sight, drafted by a bank of international repute, which shall be received by the Seller immediately after conclusion of the Contract. The letter of credit must be valid for at least 15 days after the latest time of delivery. If the letter of credit is dishonoured, then the Buyer shall pay the Seller immediately and unconditionally.
3.2 If the Buyer fails to pay the invoice on its due date, the Seller may charge interest at a rate of 3% over and above the London Interbank Offered Rate for deposits in the currency in which the unpaid amount is denominated for such period as the Seller may from time to time determine (the “Libor”). The Libor shall be the rate quoted by a prime bank in London to be chosen by the Seller. The Seller reserves the right to claim damages or compensation of wasted expenditure in excess of this.
3.3 The Buyer shall pay the price specified on the face of the Contract without set-off unless the claim is indisputable or recognized by a res judicata judgement. Counterclaims, recoupments or other similar rights which the Buyer may have against the Seller, which rights shall be exercised in separate proceedings between the Buyer and the Seller.
3.4 If the payment terms are not met or if the Seller becomes aware of circumstances which, in accordance with the Seller’s reasonable commercial judgement, gives rise to doubts as to the creditworthiness of the Buyer, then the Seller shall be entitled, without prejudice to any other statutory rights which he may have, to stop the delivery of the Goods and/or to demand reasonable advance payment or security for undelivered Goods and to cancel the Contract or claim damages instead of performance, if the Buyer fails to furnish the security within a reasonable time period.
3.5 The Seller is entitled to declare a set-off even if the claims to be set off are in foreign currencies. In such event the applicable rate shall be the mid-point exchange rate as officially fixed on the Currency Exchange in Frankfurt on the day set-off is declared, or on the currency exchange of a system succeeding this one.
4. INCREASED COST
Any new, additional or increased freight rates, surcharges (bunker, currency, congestion or other surcharges), taxes, customs duties, export or import surcharges or other governmental charges, or insurance premiums, which may be incurred by the Seller with respect to the Goods after the conclusion of the Contract, shall be for the account of the Buyer and shall be reimbursed to the Seller by the Buyer within a reasonable time on demand.
5. TAXES AND DUTIES
All taxes, duties, costs and charges arising in connection with the Seller’s deliveries or performance and levied under the laws of the national or local government or agency of the country designated under the Contract or of the country of the Buyer’s registered office, shall be borne and paid by the Buyer. This includes, but is not limited to, import duties and freight surcharges.
6. Defects and Warranty
6.1 Unless expressly stipulated on the face of the contract, the Seller makes no guarantee, expressly or impliedly, as to the quality of the goods (“Beschaffenheitsgarantie”). Any samples provided deemed viewing specimen without commitment. The quality characteristics (Beschaffenheit) of samples shall not be deemed guaranteed. If any warranty exists, the Seller’s liability shall be limited to replacement or repair of the defective Goods or to refund of the price of the Goods, at the Seller’s option.
6.2 The Buyer or the consignee designated by the Buyer must upon receipt inspect the Goods without undue delay. Apparent defects – including the absence of a guaranteed quality (Fehlen einer garantierten Beschaffenheit) – must be notified to the Seller in writing without undue delay, in any event at the latest within 14 days of such receipt. The shipment will be deemed approved if the Buyer neglects the notice of defects in due form and time. Latent defects must be notified without undue delay after they have been detected and in any event within three month after delivery. For the timeliness of the notice of defects it is crucial when the Seller receives it.
6.3 Upon discovery of a defect by the Buyer any further processing or manufacturing or other use of the Goods must be stopped and the Seller must be given the opportunity to inspect and check the notified defect. If the complaint because of defects are justified and in due time the Seller shall, at his option, remedy the defect by way of either repair or replace the goods concerned. The Seller is entitled to refuse the remedy of the defect in line with the requirements of the law. If the Seller refuses the remedy of the defect, if the remedial action is not successful or if the remedial action is unreasonable for the Buyer, the Buyer is entitled to withdraw from the contract or reduce the purchase price according to the stipulation of the following section.The Buyer is only entitled to withdraw from the contract – unless the cancellation of the contract is excluded by law – or reduce the purchase price after a reasonable respite period has expired unless such period is not required by law (§ 323 sec. 2, § 440, § 441 sec. 1 BGB). In case of a rescission of contract, the Buyer shall be liable for any deterioration, destruction or loss of benefits based upon any disregard by Customer of its due and proper care as well as any other circumstances for which Customer is responsible.
6.4 Any warranty claims shall become statute-barred not later than one year, this provision shall not apply to any goods which, according to their usual purpose, have been used for a building as well as to a defect which results from a third party`s right in rem which entitles the third party to demand the return of the product.
6.5 Any claims against the Seller based upon malicious concealment of a defect or upon an express guarantee as to the good`s quality (Übernahme einer Beschaffenheitsgarantie) at the time of delivery in the meaning of § 444 BGB shall be exclusively subject to the statutory provisions.
6.6 Where the Goods are supplied with any warnings, labels, instructions, stickers, manuals or other information (together referred to as “Instructions”) whether printed or otherwise appearing on or affixed to the Goods (or any part thereof) or any packaging in which Goods are supplied separately with the goods and whether in the form of writing, pictures or otherwise supplied separately with the Goods and whether in the form of writing, , drawings, diagrams, carriage, tolerances or other treatment of the Goods, the Buyer shall ensure that all such Instructions are not lost or damaged in any way while the Goods are in its possession or under its control and that they are supplied with the Goods when the Buyer releases them from its possession or control.
6.7 Notwithstanding the generality of the foregoing, the Seller is not liable for any loss, damage or liability or any kind suffered by any third party caused by repairs or remedial work carried out without the Seller’s prior written approval. The Buyer shall indemnify the Seller against any loss, liability and cost arising out of such claims.
6.8 Any further claims by the Buyer, in particular claims due to or in connection with defects or for indirect or consequential damages resulting from defects including but not limited to loss of profit or goodwill, irrespective of their legal basis, shall only be permitted in accordance with the terms of Clause 9 below.
7. FORCE MAJEURE AND OTHER OBSTACLES / IMPORT AND EXPORT LICENCES
7.1 If the Seller is prevented from keeping to the delivery date or delivery period through unforeseen circumstances which are out of his control and which could not be prevented even when applying the care of an ordinary merchant (force majeure), the delivery date shall be postponed in accordance with the length and extent of such circumstances, as long as performance has not become possible in the meantime. The following are considered to be events of force majeure: strike, lockouts, government actions or intervention, shortage of energy and raw materials, shortage of transport capacity, other events causing obstruction of the Seller’s, manufacturers’ or suppliers’ operation, for example, fire, flood, damage to machinery and all other obstacles, which, considered objectively, have not been caused by any fault of the Seller. It is immaterial whether these circumstances occur at the Seller’s place of business or one of the ancillary manufacturers’ or suppliers’ places of business. In case of the eventual impossibility or inability to deliver the Goods as a result of such circumstances the Seller is freed from his obligation to perform.
7.2 Should the Seller be unable to obtain the necessary import or export licences as a result of an instruction from the authorities, the Seller may withdraw from the Contract even if he has committed to obtaining such import or export licences.
7.3 If, as a result of one of the events described in Clauses 7.1 or 7.2 above, the delivery is delayed by more than six (6) weeks, the Buyer is entitled to withdraw from the part of the Contract which has not been fulfilled. Should the Buyer beunable to produce an economically justifiable evaluation of the part of the Contract already fulfilled he shall have the right to rescind the Contract in full.
8. RETENTION OF TITLE
8.1 The Seller shall retain title to all Goods supplied by him (the “Reserved Goods”), until all the payments due under the Contract are made in full and until all the Seller’s claims resulting from any business relationship with the Buyer have been duly settled. This shall also apply with regard to a balance in the Seller’s favour, if any or all of the Seller’s claims have been included in a current account and the balance has been determined.
8.2 Any processing or manufacturing of the Reserved Goods carried out on behalf of the Buyer is deemed to be carried out by the Seller as manufacturer within the meaning of §950 BGB (German Civil Code) but without binding him. If the Reserved Goods are processed or combined together with other goods so that they are inseparable, then the Seller shall acquire joint ownership in the new product in proportions relating to the invoice value of the Reserved Goods and the value of the products processed or mixed with the Reserved Goods. If the Reserved Goods are combined with other moveable goods, to form a single product which becomes the principal product, or if the Seller loses ownership of the Goods in any other way, then the Buyer shall and hereby assigns to the Seller joint ownership in the new product or commodity in the same ratio as explained above. The Buyer shall retain custody or joint custody of the Goods/product at no cost to the Seller. Any joint ownership rights arising pursuant to the terms of this section shall be considered as Reserved Goods. During the Seller’s ownership or joint ownership of the Goods, the Buyer is under an obligation at all times upon the Seller’s request to furnish the Seller with all necessary information about the Goods.
8.3 The Buyer may sell Reserved Goods only in the ordinary course of business and shall not pledge or grant an equitable lien or other third party interest over the Reserved Goods until all the payments due under the Contract are made in full provided that the Buyer shall retain title to all Reserved Goods resold by it until all the payments due under the Contract for re-sale are made in full. The Buyer’s right to resell and to further process or manufacture the Reserved Goods shall cease automatically if the Buyer discontinues its payments or if the Buyer is in default with regard to any payments due to the Seller.
8.4 The Buyer hereby assigns to the Seller all rights and claims, including all security and ancillary rights, arising from or in connection with the sale of the Reserved Goods against end users or other third parties. The Buyer may not enter into any agreements with his customers, which exclude or prejudice the Seller’s rights in any way or which render the assignment of future rights and claims null and void. If the Reserved Goods are sold together with other goods and the value of the Reserved Goods cannot be determined separately on the invoice, then any claim against a third party out shall be considered as assigned to the Seller in the amount of the delivery price determined between the Seller and the Buyer. In the event of the sale of any goods in which the Seller holds joint ownership, then the claim on the resale funds shall be assigned to the Seller in the amount of the Seller’s joint ownership share.
8.5 The Buyer remains entitled to exercise the rights and claims assigned to the Seller until the Seller cancels this right, which the Seller is entitled to do at any time at his sole discretion. On the Seller’s request, the Buyer shall provide the Seller with all information and documentation necessary for the collection of the assigned rights and claims and shall give notice of the assignment to his customers, unless the Seller does so himself.
8.6 In the event of a breach of Contract by the Buyer, in particular in case of failure to make full payment, the Seller is entitled to reclaim all the Reserved Goods. The Buyer is also obliged to surrender the Goods without any further action by the Seller being required. Should the Seller retrieve the Goods this shall be considered as a withdrawal from the Contract only if the Seller expressly declares so in writing or if mandatory legal provisions provide so. The Buyer must inform the Seller without undue delay in writing of any and all seizures or any other actions by third parties against Reserved Goods or rights and claims assigned to the Seller.
8.7 Should the value of the security, to which the Seller is entitled under the foregoing provisions, exceed the secured claim by more than 10% in total, then the Seller, upon the request of the Buyer, shall at his discretion release such security to the extent of such excess.
8.8 To the extent that the foregoing provisions for retention of title are invalid under the laws of the state in which the Goods are located, then a similar/equivalent security to the Seller’s which is admissible under the laws of the state will be valid. The Buyer is under an obligation to take all steps necessary to establish and maintain such security.
9. LIABILITY FOR DAMAGES AND REIMBURSEMENT OF EXPENSES
9.1 With regard to any pre-contractual, contractual and non-contractual breach of duty – including without being limited to the delivery of a defective product, tort and producer`s liability – the Seller is liable for damages and reimbursement of expenses only in case of wrongful intent, gross negligence or of slight negligence of a substantial duty (duty which violation endangers the purpose of the contract). However the Seller`s liability – excluding the event of wrongful intent – shall be limited to the typical and foreseeable damage.
9.2 Upon the violation of substantial duties the liability for slight negligence shall be excluded, at least limited to the amount of the purchase price.
9.3 The exclusion and limitation of liability pursuant to the foregoing sec. 1 and 2 shall not be applicable in case of any guarantee of quality (Beschaffenheitsgarantie) in the meaning of § 444 BGB, in case of any malicious concealment of a defect,in case of any liability for injuries to a person`s life, body or health or in case of any liability under the Product Liabitlity Act (Produkthaftungsgesetz).
9.4 All claims for damages and reimbursement of expenses against the Seller, irrespective of their legal basis, shall become statute-barred one year from the delivery of the goods, in case of tortious liability from the discovery or grossly negligentignorance of the circumstances giving rise to the claim or the person liable to pay damages. This provision shall not apply in case of intent, in the cases specified in sec. 3 above and in case of a product which, according to its usual purpose,has been used for a building as well as in case of a defect which results from a third party`s right in rem which entitles the third party to demand the return of the product. Any shorter limitation periods provided by law shall prevail.
9.5 The provisions of this clause shall also apply in favour of the Seller`s legal representatives and employees.
9.6 If industrial property rights of third parties are violated by the delivery of Goods, the Seller shall only be liable to the extent set out in Clause 9.1 to 9.5.
9.7 If at any time it is alleged or, it is in the Seller’s reasonable opinion, likely to be alleged that the goods infringe the rights of any third party, the Seller may at its discretion and at its own expense:(a) so as to avoid the infringement of a law, modify or replace the goods in such a way which does not endanger the performance of the whole Contract; or (b) procure for the Buyer the right to continue to use the goods, or repurchase the goods at the price paid by the Buyer (less depreciation).
10. PLACE OF PERFORMANCE, JURISDICTION, APPLICABLE LAW
10.1 The place of performance for all contractual liabilities shall be the place of the registered offices of the Seller at Georg-Glock-Straße 08, 40474 Düsseldorf unless agreed otherwise in writing. The Buyer may, however, also be sued in all cases at the court of his domicile.
10.2 All and any legal relationship between the Buyer and the Seller shall exclusively be governed by German law. The trade terms herein used such as F.O.B., C.F.R. and C.I.F. shall be interpreted in accordance with the Incoterms. The uniform laws concerning contracts for international sales of goods according to the Hague Convention and the UN-Convention shall not be applicable.
11. INTELLECTUAL PROPERTY RIGHTS
Nothing herein contained shall be construed as transferring any patent, trademark, utility model, design, copyright, mask work or any other intellectual property rights in the Goods, all such rights being expressly reserved to the true and lawful owner.
12.1 In case there is any provision on the face of the Contract which prohibits or restricts the Buyer from or to doing certain acts (eg destination restriction clause), the Buyer shall ensure that its customers and users of the Goods will comply with such prohibition or restriction, provided that this provision shall not, in any way, be construed to diminish the Buyer’s obligation to comply with such prohibition or restriction.
12.2 The rights and remedies of the Seller hereunder are cumulative and in addition to the Seller’s rights, powers and remedies existing at law or in equity or otherwise.
12.3 The failure of the Seller at any time to require full performance by the Buyer of the terms hereof shall not affect the right of the Seller to enforce the same. The waiver by the Seller of any breach of any provision of the Contract shall not be construed as a waiver of any succeeding breach of such provision or waiver of the provision itself.
12.4 The Buyer shall not transfer or assign the Contract or any part thereof.
12.5 The Contract constitutes the entire agreement between the parties hereto and supersedes all prior or contemporaneous communications or agreements or undertakings with regard to the subject matter hereof. The Contract may not be modified or amended except by a written agreement of the parties hereto. This applies also to the exclusion of the written form.
12.6. In the event of any provision of these conditions or of any related stipulations being or becoming unenforceable, validity of the remaining part of the contract shall not be effected thereby. The parties hereto shall be obliged to replace the unenforceable provision by another equivalent provision, the commercial effect of which is as similar as possible to the original provision.
Data on the Seller’s customers and purchasers will be stored and processed by computers to the extent that this is necessary for proper handling of the contractual relationship.
1.1 The following General Conditions of Purchase shall govern exclusively the contract for the purchase of the goods specified overleaf (the "Goods") by the Buyer from the Seller (the "Contract"). Contrary or different conditions of the Seller shall be applicable only if and insofar as the Buyer expressly consents to them in writing. The Buyer's mere silence with respect to amendments proposed by the Seller shall not be construed as acknowledgement or consent. The Buyer hereby expressly objects to all of the Seller's amendments.
2.1 The obligation of the Seller to deliver the Goods punctually by the time or within the period stipulated on the face of the contract is of the essence of the Contract. In the event the Seller fails to make timely delivery of the goods the Buyer may extend the period for delivery reasonably or cancel the contract in either event without prejudice to any of the rights and remedies available to the Buyer, including but not limited to claims for damages arising out of or in connect with such delay in delivery.
2.2 No provision for delivery of Goods by instalments shall be considered as making the obligations of the Seller severable.
2.3 The Seller shall bear the risk of loss of the Goods until the Goods are delivered to the place of destination as specified on the face of the Contract, provided that if such a trade term as contained in the Incoterms of the latest edition (the "Incoterms") is used on the face of the Contract in connection with the delivery terms, the risk of loss of the Goods shall pass in accordance with the provisions of the Incoterms.
2.4 Title to the Goods shall pass from the Seller to the Buyer at the time when risk of loss of the Goods passes from the Seller to the Buyer in accordance with the preceding paragraph.
2.5 For the purpose of this general terms and conditions, the term "delivery", or "deliver" shall mean "shipment" or "ship", in case the Contract is based on F.O.B., C.F.R. or C.I.F.
2.6 If the Seller becomes aware that he cannot keep the delivery date(s), he shall inform the Buyer immediately, specifying the grounds for the delay, so that the Buyer can make other arrangements in time. Such notice shall not release the Seller from his obligation to comply with the delivery date(s). Any additional costs arising through the use of a faster mode of transport, required as a result of the Seller's non-compliance with the delivery date(s), shall be borne by the Seller.
2.7 In the event of delay in delivery, including but without limitation to any deviation in the quantity of the goods delivered, the Buyer is entitled, after the expiration of a reasonable extension period unless the extension period is dispensable (§ 281 sec. 2, § 323 sec. 2 BGB), to fully or partly cancel the contract (- in case of deviation in the quantity of the goods the Buyer is only entitled if the part delivery is of no interest for the Buyer-, to make a substitute purchase and/or to claim damages instead of performance. The Buyer is also entitled to these rights without having to grant an extension period if, as a result of the delay, the delivery is no longer of use/value to the Buyer. The Buyer's rights to damages in respect of loss or damage incurred by him as a result of the delay shall not be affected by the acceptance of Goods or services delivered late.
3.1 If under the terms of the Contract the Seller is to secure the vessel, truck, aircraft, railway or car or other means of transportation, or space thereof, the Seller shall secure such means of transportation, owned and/or operated by carrier(s) of good international repute and financial standing and of the type normally used for the transport of such goods of the same type as the Goods.
3.2 The Goods shall be transported by way of usual transportation routes without any extraordinary deviation.
3.3 In the case of marine transportation, the Seller undertakes to load the Goods on first class motor vessel(s), classified not lower than LLOYD'S 100AI or the top classification in other equivalent registers and having an adequate supply of bunker oil and otherwise adequately seaworthy for uninterrupted passage to the place of destination specified on the face of the Contract.
3.4 In the event the Buyer is to secure or arrange the means of transportation, all charges and expenses for loading of the Goods, including demurrage and other damage which are to be for the account of the charterer against the carrier under the relevant charter party or contract for the carriage, shall be borne and paid by the Seller.
4. Notice of Loading or Delivery to Carrier
Immediately after the completion of the loading of the Goods (or if the Seller is not obliged to load the Goods, but to deliver the Goods to the carrier, immediately after the completion of delivery of the Goods to the carrier), the Seller shall cable or telex to the Buyer a notice of loading (or delivery), showing the number of the Contract, the name of the vessel or the flight number of the aircraft or (if neither vessel nor aircraft) the identity of the means of the transportation, the name of the carrier, the place of loading (or delivery), a description of the Goods and packing, the quantity loaded (or delivered), the invoice amount and other essential particulars.
The price specified on the face of the Contract shall be fixed and shall not be subject to any adjustment for any reason whatsoever.
All taxes, export duties, fees, banking charges and/or charges attributable to the Goods, containers and/or documents (including but not limiting to certificates of origin in the country of loading or delivery) shall be borne and paid by the Seller.
7. Marine Insurance
Unless otherwise specified on the face of the Contract, if the Contract is on a C.I.F. basis, 110% of the invoice amount shall be insured on the basis of all risks (Institute Cargo Clauses) by the Seller.
8. Inspection and Acceptance
The Goods are subject to inspection and approval at the destination as specified on the face of the Contract or the place designated by the Buyer. The Buyer reserves the right to reject and refuse acceptance of all or part of the goods which are not in accordance with specifications, descriptions, drawings, data, samples or models furnished by or to the Buyer or with the quantities stated here in or with the Seller's express or implied guarantees. The Buyer will charge the Seller for any costs incurred in inspecting the Goods which are rejected. The Goods not accepted will be returned to the Seller at the Seller's expense for full credit at the price charged. No returned Goods shall be replaced without the Buyer's written replacement order. Payment for any Goods shall not be deemed as acceptance thereof.
9.1 The Seller warrants for a period of two years that the goods supplied by the Seller are free from any defects which would adversely affect the use to which they are usually put or impair their operation and that they perform fully to the specifications promised under the contract and/or guarantee by the Seller.
9.2 If the Goods supplied are defective or become defective during the warranty period or if they do not perform fully to the quality guaranteed, the Buyer shall, irrespective of his statutory warranty claims, at his discretion, either require repair of the defective goods within a reasonable period of time, or delivery of goods free from defects. If the repair or the replacement of the defective goods fail, the Buyer is entitled to withdraw from the contract, reduce the purchase price and/or claim damages of reimbursement of expenses, after a reasonable respite period has expired unless such period is not required by law. The Seller’s obligation to repair or replace defective goods is without prejudice to any other rights of the Buyer.
9.3 In case of emergency or in case of the Seller`s default of repair or replacement the Buyer is entitled to repair the defect itself at the Seller`s expense, or instruct a third party to do so, or make a substitute purchase. The Buyer shall be entitled to set off the costs of remedying the defects against the purchase price and/or any other money owing to the Seller. Alternatively in such circumstances the Buyer shall have the right in lieu to cancel the Contract in full or in part without payment of compensation.
9.4 The above provisions shall also be applicable to any replacement delivery or repair work.
9.5 The Buyer reserves the right to claim damages for defects which have been caused by defective delivery or performance of the Seller. The Seller shall bear the burden of proof that he is not responsible for such defects.
10. Force Majeure
10.1 In the event of an Act of God (including but not limited to flood, earthquake, typhoon, epidemic or other natural calamity), war or armed conflict or the serious threat of the same (including but not limited to hostile attack, blockade, embargo, riot or insurrection), governmental order, regulation or request (including but not limited to the prohibition or restriction of importation or exportation or the regulation or allocation of energy resources), labour disputes (including but not limited to strike, slowdown, lockout or sabotage) or any other similar reason which seriously affects the Buyer or any of its customers for the Goods or in the event of a severe shortage of oil, gas, electricity or raw materials, which prevents the Buyer or any of its customers for the Goods from continuing its/their normal level of operation, the Buyer shall notify the Seller in writing of such event(s) and the Buyer may in its sole discretion and upon written notice to the Seller, either delay the performance of the contract in whole or in part for a reasonable period of time or terminate the contract or the portion thereof affected by such event(s) if the delay lasts more than 30 days. Any such delay in performance by the Buyer shall not preclude the Buyer's later right to terminate the Contract or the portion thereof affected by such event(s). In no event shall the Buyer be liable to the Seller or any third party for any costs or damages arising directly or consequentially from such termination or delay.
10.2 If the Seller is unable to deliver the Goods in whole or in part to the Buyer as specified on the face of the Contract by reason of Act of God, war or armed conflict or the serious threat of the same, governmental order or regulation or labour dispute which occurred without the Seller's fault, the Seller shall immediately notify the Buyer in writing of such delay and the reason therefor and the Buyer shall, if requested by the Seller, extend the time of delivery until such event(s) shall not longer prevent delivery by the Seller. In the event the above-mentioned event(s) cause a delay beyond thirty days (30) from the date of delivery specified on the face of the Contract, the Buyer may, in its sole discretion and upon written notice to the Seller, terminate the Contract or the portion thereof affected by such event(s).
10.3 Upon early termination of the Contract in whole or in part under this section, the Seller shall reimburse the Buyer any amount of money paid by the Buyer to the Seller with respect to any undelivered portion of the Goods.
11.1 The Seller will indemnify and keep the Buyer fully indemnified in respect of all damages, costs, claims, liabilities, expenses, losses (including consequential loss) and demands incurred by the Buyer, the Buyer's customer(s), users of the Goods and its or their officers, directors and employees, directly or indirectly as a result of any negligent acts and/or omissions of the Seller’s employees, agents, sub-contractors or representatives (save to the extent that such loss, damage, costs claims or expenses arise from negligent acts and/or omissions of the Buyer’s employees, agents, sub-contractors and representatives) and all breaches by the Seller of the terms of any contract (including without limitation any of these terms and conditions) and any absence of a guaranteed quality in respect of the goods whether express or implied, by statute or otherwise.
11.2 The Seller undertakes to insure itself against claims for damages arising in connection with the delivery of the Goods under the Contract. The Buyer has the right to demand proof in writing that this insurance requirement has been complied with. All moneys received by the Seller under this Clause 11.2 are to be held for the account of the Buyer.
12. Product Liability, Indemnity
12.1 Insofar as the Seller is responsible for damage to property caused by defective products he is obliged to indemnify the Buyer, on the Buyer's first request, in respect of claims for compensation by third parties in relation to the above.
12.2 Within the scope of Clause 12.1 above the Seller shall also reimburse possible costs arising in accordance with §§683, 670 BGB (German Civil Code) which may arise from a product recall carried out by the Buyer. In as far as is possible and reasonable, the Buyer will inform the Seller about the contents and scope of the product recall and give the Seller an opportunity to give comments.
13. Intellectual Property Rights
13.1 It is the Seller's responsibility to ensure that Goods supplied by him do not breach any domestic or foreign industrial property rights. Furthermore the Seller warrants that all Goods shall be delivered free of any third party rights.
13.2 If a claim is made against the Buyer for an infringement of intellectual property rights, the Seller is obliged to indemnify and keep indemnified the Buyer, the Buyer's customer(s), users of the Goods and its or their officers, directors and employees in respect of such a claim on the Buyer's first written request. This obligation of the Seller to indemnify extends to all costs incurred which the Buyer considers reasonable in connection with the third party claim.
14. Retention, Set-off
The Seller shall only be entitled to retention or set-off in respect of undisputed claims or judgments of the courts.
15. Place of Performance, Jurisdiction and Applicable Law
15.1 Unless agreed otherwise in writing the place of performance for delivery shall be the destination specified by the Buyer. With respect to any payment, the place of performance shall be Düsseldorf.
15.2 Exclusive place of jurisdiction for both parties shall be Düsseldorf. The Seller, however, may also be sued in all cases at the court of his domicile.
15.3 All and any legal relationship between the Seller and the Buyer shall exclusively be governed by German law. The trade terms herein used such as F.O.B., C.F.R. and C.I.F. shall be interpreted in accordance with the Incoterms. The uniform laws concerning contracts for international sales of goods according to the Hague Convention and the UN-Convention shall not be applicable.
16.1 The rights and remedies of the Buyer hereunder are cumulative and in addition to the Buyer's rights, powers and remedies existing at law or in equity or otherwise.
16.2 The failure of the Buyer at any time to require full performance by the Seller of the terms hereof shall not affect the right of the Buyer to enforce the same. The waiver by the Buyer of any breach of any provision of the Contract shall not be construed as a waiver of any succeeding breach of such provision or waiver of the provision itself.
16.3 The Contract constitutes the entire agreement between the parties hereto and supersedes all prior or contemporaneous communications or agreements or undertakings with regard to the subject matter hereof. The Contract may not be modified or amended except as a written agreement of the parties hereto. This applies also to the exclusion of the written form.
16.4 The Seller shall not transfer or assign the Contract or part thereof or any moneys due hereunder without the Buyer's prior written consent.
16.5 In the event of any provision of these conditions or of any related stipulations being or becoming unenforceable, validity of the remaining part of the contract shall not be effected thereby. The parties hereto shall be obliged to replace the unenforceable provision by another equivalent provision, the commercial effect of which is as similar as possible to the original provision.
Data on the Buyer's customers and suppliers will be stored and processed by computers to the extent that this is necessary for proper handling of the contractual relationship.