1. Scope

All deliveries and the thus associated services are exclusively carried out based on these terms of sale. References of the customer to its business terms are hereby objected to. Deviations from these business terms require the explicit written recognition by CarboFibretec. Our terms and conditions shall also apply if CarboFibretec in the knowledge of opposing or deviating terms and conditions of the Customer carries out the delivery or service without reservation.

2. Offer, offer documents and acceptance

2.1.   The offers of CarboFibretec are not binding.

2.2.   A contract with CarboFibretec shall only be deemed as concluded if

  • the customer accepts the offer without reservation or
  • the customer receives the written order confirmation of CarboFibretec or
  • CarboFibretec begins with the execution of the delivery or service.

If CarboFibretec issues a written order confirmation then this shall be decisive for the contents and scope of the contract insofar as not explicitly otherwise agreed in writing.

2.3.   CarboFibretec reserves the property rights and copyrights to diagrams, drawings, calculations, specifications and other documents. This shall also apply to such written documents which have been designated as “confidential”. Before their forwarding to third parties the customer requires the explicit written consent of CarboFibretec.

3. Changes, supplements, collateral agreements

3.1.   Insofar as not otherwise agreed with the customer CarboFibretec reserves the right to make changes to the construction, choice of materials, specifications or type of production also after conclusion of the contract insofar as the changes remain within the framework of the contractual purpose of the service.

3.2.   Incidentally, changes and collateral agreements require a written form in order to be valid.

4. Product condition, samples and specimens, guarantees

4.1.   Insofar as not otherwise agreed the condition of the goods can be exclusively derived from the product specifications of CarboFibretec.

4.2.   Properties of samples and specimens are only binding insofar as they have been explicitly agreed as a condition of the goods.

4.3.   Details relating to condition and service life as well as other details are only guarantees if they are agreed and described as such.

5. Prices, terms of payment

5.1.   In the absence of another written agreement the prices of CarboFibretec are deemed pure net excluding packaging and other shipment and transport costs. The packaging shall be charged at cost price and only taken back if we are obliged to do this by virtue of mandatory statutory regulation. The applicable rate of value added tax is not included in the prices; it shall be shown separately in the invoice in the statutory amount on the day of the invoicing.

5.2.   CarboFibretec reserves the right to change the prices accordingly if reductions in costs or increases in costs occur after conclusion of the contract, in particular in material, wage or other secondary costs. We shall prove these towards the customer upon request.

5.3.   Requests for changes of the customer which involve additional costs will be invoiced hereto.

5.4.   If remuneration according to hours or per diem rates has been agreed subject to any other agreements in an individual case the respective actual price list of CarboFibretec at the time when the service is provided shall apply. CarboFibretec reserves the right to request reasonable instalment and advance payments. Secondary costs and other costs spent due to the execution of the contract shall be settled in line with the actual incurred costs.

5.5.   The deduction of cash discount requires a special written agreement.

5.6.   Insofar as not otherwise agreed the purchase price is to be paid net (without deduction) within 14 days after the invoice date. If cheques are accepted in an individual case owing to explicit agreements CarboFibretec shall accept these as conditional payment, not however in lieu of payment. Any costs associated with the cheques shall be for the account of the customer. CarboFibretec shall only recognise cheque payments as satisfaction if the respective amounts have been credited to the account without reservation.

5.7.   If CarboFibretec is entitled to several claims against the customer then CarboFibretec shall determine against which debt the payment is offset. The customer is insofar authorized to exercise a right of retention to the extent that its counter claim is based on the same contractual relationship.

5.8.   If the customer is in default of payment CarboFibretec is entitled to request interest on default with invoicing in Euro in the amount of 8% points above the base lending rate which is applicable at the time of the occurrence of the default and as published by the Deutsche Bundesbank and with invoicing in another currency in the amount of 8% points above the discount rate applicable at this time of the highest bank institution of the country, in whose currency the invoice was carried out, insofar as CarboFibretec does not prove any higher damages to the customer.

5.9.   If CarboFibretec becomes aware of circumstances after conclusion of the contract, and before provision of its own service, according to which the claims of CarboFibretec against the customer appear in danger through the lack of efficiency of the customer then CarboFibretec is entitled to only carry out still outstanding deliveries as an option against advance payment or provision of collateral, or after the unsuccessful expiry of a deadline set for this, to cancel the contract. The right is reserved to assert damages.

5.10. If after provision of the service of CarboFibretec the customer does not comply with the terms of payment or if circumstances become known which are suitable for reducing the creditworthiness of the customer then all claims of CarboFibretec shall be due and payable immediately. CarboFibretec can also forbid the resale of the goods delivered under reservation of title as well as request that these are returned or request the assignment of the indirect possession at the costs of the customer and with the granting of a direct debit mandate to revoke this according to Subclause 10.2.

5.11. CarboFibretec is entitled to assign its claims against the customer to third parties.

6. Delivery time

6.1.   Delivery deadlines and delivery dates shall only always be deemed as approximate. This deadline shall begin no earlier than on the day upon which our written order confirmation is despatched, however not before the provision of the documents which are to be procurement by the customer, materials and facilities, approvals, drawings, which are to be made available, releases which are to be given or before the receipt of a possibly agreed advance payment.

6.2.   The delivery deadline shall be observed if the object of delivery has left the plant by its expiry or notification has been given that the goods are ready for shipment.

6.3.   If amendments or supplements to the supply contract are subsequently agreed a new delivery deadline is if applicable to be agreed at the same time. The new delivery deadline shall not begin to apply before the sending of a new order confirmation of CarboFibretec.

6.4.   Events of force majeure entitle CarboFibretec to postpone the provision of the service by a reasonable period of time or to cancel owing to the not yet satisfied part of the contract. Deemed as equivalent to the force majeure are strike, lock out, mobilisation, war, blockade, export – and import bans, shortages of raw materials and fuel, fire, transport blocks, interferences to the operation or the transport as well as similar circumstances, also at sub-suppliers. Claims for damages of the customer are excluded in case of force majeure insofar as there is neither wilful intent nor gross negligence at CarboFibretec.

6.5.   The circumstances described above are not the responsibility of CarboFibretec either if they occur during an already existing delay. The start and end of such impediments are to be reported to the customer as soon as possible.

6.6.   Delivery obligations and delivery time shall only be agreed subject to correct and timely self-delivery. If it is not carried out CarboFibretec is entitled to cancel the contract without compensation.

6.7.   If CarboFibretec is in default itself the customer has to set a reasonable final deadline. After the expiry of this deadline the customer can cancel the contract, claims for damage of the customer are limited in terms of amount to 5 % of the order value. The limitation shall not apply with a breach of essential duties which endanger the purpose of the contract and insofar as there is gross negligence or wilful intent at CarboFibretec. The afore-mentioned regulation shall also apply with impossibility of the service for which CarboFibretec is responsible.

6.8.   Partial deliveries are permitted.

6.9.   If the customer is in default of acceptance or if it culpably breaches other duties to provide assistance then CarboFibretec is entitled to request compensation for the accordingly suffered damages, including possible additional expenses. The right remains reserved to further claims or rights.

7. Passing of risk

7.1.   The risk of accidental loss and the accidental deterioration of the goods shall pass to the customer as soon as these have been made available for collection at the registered seat of CarboFibretec and the notification of the readiness for transport has been given to the customer.

7.2.   Insofar as CarboFibretec has taken over the delivery the risk of the accidental loss and the accidental deterioration of the goods shall pass to the customer when they leave the plant.

7.3.   These regulations shall also apply if partial deliveries are made or if CarboFibretec has taken over other services still.

8. Warranty

8.1.   The customer has to check deliveries and services of CarboFibretec immediately after receipt of the goods from a factual and specialist point of view or to carry out an inspection of the goods based on the shipping documents of CarboFibretec. It cannot be released from this inspection obligation. Reports of defects must be asserted within 8 workdays in writing by stating the recognisable defects. Defects, before expiry of the statute-of-limitations for warranty claims, which only become apparent at a later time, must be reported in writing towards CarboFibretec within 8 workdays after these are recognised by the customer. In case of a breach of the obligation for inspection and for reporting of a defect by the customer the object of delivery shall be deemed as approved in view of the defect concerned.

8.2.   In case of justified complaints CarboFibretec shall make a subsequent improvement or replacement delivery at its own choice. If subsequent improvement or replacement delivery fail the customer can request the reversal of the contract or reduction of the price. Claims for damage are principally excluded unless there is wilful intent or gross negligence at CarboFibretec or its vicarious agents. In case of trading business claims for damages are also excluded in case of the absence of warranted properties if the assurance did not particularly have the importance to avoid follow-up damages from defects.

8.3.   CarboFibretec assumes no warranty for damages or defects, which are caused by unsuitable or improper use, processing and change to the goods delivered by CarboFibretec by the customer or third parties. The same shall apply to the event that the instructions of CarboFibretec concerning the treatment of the delivered goods are not followed or the defects have been caused by technical documents which are to be delivered by the customer, or missing or complete, technical documents, single parts or raw materials.

8.4.   The statute-of-limitations for claims for defects is 12 months, beginning from delivery of the goods, with production of a work 12 months since the acceptance.

9. Execution of the order

9.1.   CarboFibretec undertakes to base its services upon the newest generally recognised standard of science and technology at the time when the order is placed as well as upon its own experience and knowledge. Services, studies, planning, analyses, evaluations and other features shall be created and carried out according to the principles of the proper professional practice. The achievement of a certain financial success if not owed.

9.2.   If the object of contract is the content of a research and/or development work in full or in part then CarboFibretec shall fulfil its contractual obligations for the part of the contract, which represents the research and/or development work if it makes every effort to achieve the best possible results by complying with Subclause 9.1 above within the framework of the agreed remuneration.

10. Reservation of title

10.1. CarboFibretec reserves the property to the delivered goods until the full payment of all claims from the business relationship, also claims incurred in future, even if payments are made for particularly designated claims. In case of current account the reserved property shall be deemed as collateral for the balance claim of CarboFibretec.

10.2. Goods subject to reservation of title may only be sold in proper business transactions. This shall no longer apply if the customer is in default. The customer is neither entitled to a pledge, nor to a chattel mortgage. An attachment by a third party is to be reported to CarboFibretec immediately.

10.3. Each processing or connection of the goods delivered by CarboFibretec by the customer shall be carried out by order of CarboFibretec, without liabilities being established for CarboFibretec hereby. In case of processing, conversion or connection with other objects which do not belong to CarboFibretec it shall be entitled to a co-ownership right to the new object in the amount of the share which is derived from the ratio of the invoice value of the processed, converted or connected reserved goods to the value of the new object.

10.4. The customer assigns all claims – including all balance claims from current account – against third parties, to which it is entitled in connection with the use of the gods under reservation of title, in particular owing to resale, processing in the amount of the invoice value of the goods delivered by CarboFibretec to CarboFibretec. The assignment serves to secure all claims, in particular also claims for damages, which CarboFibretec has against the customer. The customer is entitled to collect the assigned claims until the revocation by CarboFibretec. The collection authorization shall also lapse without an explicit revocation in case of default or other indications of payment difficulties of the customer.

10.5. If the realisable value of the existing collateral exceeds the claims of CarboFibretec in total by more than 20 % then CarboFibretec is obliged at the customer’s request to accordingly release the collateral at the choice of CarboFibretec.

10.6. In case of default of payment the customer is obliged at the request of CarboFibretec to immediately provide all information which is useful for asserting the rights to reservation of title of, in particular to issue a list of the reserved goods and their location.

10.7. The right of the customer to possess the reserved goods shall lapse if it does not satisfy its obligations from the reciprocal business relations. In these cases CarboFibretec is entitled to access the business premises or other estate of the customer, to take possession of the reserved goods and to sell these to the best possible extent after announcement. The proceeds shall be offset against the liabilities for the customer after deduction of the costs. The taking back and sale of the objects delivered under reservation of title shall not represent a cancellation of the contract.

11. Rights of use

11.1. CarboFibretec shall examine by applying the customary care and attention for the company that its work results do not intervene in the rights of third parties or infringe these rights.

11.2. Should third parties assert claims with regard to the development results created by CarboFibretec for the customer against it then CarboFibretec shall indemnify the customer from these claims. The pre-requisite is that the customer informs CarboFibretec immediately so that it has the opportunity to take the measures which are necessary for defending the rights.

11.3. If CarboFibretec does not succeed in defending these claims within 6 months the contractual partners shall endeavour to achieve an amendment to the contract which shall as far as possible correspond with the financial interests of the contractual partners.

11.4. CarboFibretec is entitled to change the form of the working hour and/or development results to the extent that the infringement of the rights of third parties is excluded as long as the usability of the service which is to be provided by CarboFibretec for the customary use which is presumed according to the contract is not revoked or reduced.

11.5. Except with wilful intent or gross negligence the liability or indemnification is limited in terms of amount to a usage fee which is customary for the industry. The rights of the customer to cancel the contract remains unaffected.

12. Limitation to liability

12.1. A further liability for damages than envisaged in these terms and conditions is – irrespective of the legal nature of the asserted claim – excluded. This shall apply in particular to claims for damages from the fault upon conclusion of the contract, owing to other breaches of duty or owing to claims in tort for the compensation of property damages according to § 823 BGB.

Excluded from this are those claims with which the damages

  • have been caused by culpable breach of an essential contractual obligation (cardinal obligation) in a manner which endangers the achievement of the purpose of the contract
  • or are a result of gross negligence or wilful intent of CarboFibretec.

12.2. If CarboFibretec is liable according to 12.1 first listed point for the breach of an essential contractual obligation without there being gross negligence or wilful intent then the liability is limited to that scope of damages with the occurrence of which CarboFibretec should have typically expected with the conclusion of the contract owing to the circumstances known to it at this time.

12.3. Insofar as the liability for damages is excluded or limited towards CarboFibretec this shall also apply with regard to the personal liability for damages towards its employees, workers, representatives and vicarious agents.

12.4. Not affected by the afore-mentioned limitation to liability is the statutory liability of CarboFibretec towards the injured party according to the Product Liability Act.

13. Place of performance, place of jurisdiction, ban on assignment

13.1. The place of performance for all obligations indirectly or directly ensuing from this contractual relationship, including the payment obligation, is the registered seat of CarboFibretec.

13.2. Insofar as the customer is a merchant within the meaning of the HGB, legal entities under public law or special assets under public law, the place of jurisdiction is the registered seat of CarboFibretec. CarboFibretec is also entitled to file action before a court which has jurisdiction for the registered seat or the branch of the customer.

13.3. The assignment of claims, to which the customer is entitled from the business relationship against CarboFibretec, is excluded.

14. Applicable law

14.1. The law of the Federal Republic of Germany shall apply exclusively to these business terms and the entire legal relations between CarboFibretec and the customer.

14.2. The application of the UN Convention on the International Sale of Goods is excluded.

15. Final provisions

15.1. Amendments and addendums or collateral agreements are only legally effective in a written form.

Should one provision in these business terms and conditions be or become invalid then this shall have no effect on the validity of the other provisions. An invalid provision is to be replaced by an agreement of both contractual partners to the extent that the originally intended purpose is achieved to the largest possible extent.

 

July 2013