Terms and Conditions

I. General Provisions

1. These General Terms and Conditions shall be legally binding for all business and legal transactions between us and our customers, provided that the customer is a business within the meaning of Section 14 of the German Civil Code (BGB). They shall also apply to all future transactions in the version known to the customer at the relevant time.
2. We do not recognise any terms and conditions of the customer that conflict with or deviate from these Terms and Conditions unless we have expressly agreed to their application in writing prior to conclusion of the transaction.

II. Orders and Offers

1. Our offers are non-binding and subject to change without prior notice. Any information relating to weights, performance characteristics and colours shall be regarded as approximate only. The same applies to samples and models. We reserve the right to make technical changes and modifications insofar as these are reasonable.
2. The agreed characteristics of the goods offered shall be determined by the product description published by the manufacturer. Any other publications or advertising by the manufacturer shall not constitute agreed contractual characteristics of the goods.
3. If an order placed by the customer qualifies as an offer within the meaning of Section 145 BGB, we may accept such offer within two weeks. Acceptance shall be effected by sending an order confirmation. Delivery of the goods shall replace the order confirmation.
4. We reserve the right to deliver quantities of up to 5% more or less than the quantity ordered.
5. Any oral ancillary agreements and/or assurances shall be invalid. All agreements must be made in writing.

III. Prices

1. Our prices are stated in our offers and price lists.
2. We reserve the right to adjust prices if an order is delivered three months or more after conclusion of the purchase agreement and the basis on which the price was calculated has changed during this period, for example due to price increases by upstream suppliers. Unless otherwise required by law, any other charges, public levies, new taxes, freight costs or increases thereof which directly or indirectly affect the price of the goods and make them more expensive than originally anticipated shall be borne by the customer. The same shall apply to partial deliveries under call-off orders.

IV. Delivery Periods

1. Delivery periods are always non-binding unless expressly confirmed by us. A delivery period shall commence on the date of the order confirmation. The delivery period shall be deemed to have been complied with if the goods have been notified as ready for dispatch but cannot be delivered on time through no fault of our own.
2. If correct and timely delivery to us by an upstream supplier becomes impossible, we shall be entitled to withdraw from the purchase agreement in whole or in part or to extend the delivery period by the duration of the impediment, unless the reason for the failure to supply falls within our area of responsibility. The customer shall be informed of such circumstances without undue delay. Upon receipt of such notification, the customer shall be entitled to request that we declare whether we intend to withdraw from the agreement or make delivery within a reasonable period. If we fail to make such a declaration upon request, the customer shall be entitled to withdraw from the agreement. Any payments already made by the customer towards performance of the agreement, such as advance payments, shall be refunded by us without undue delay.
3. The delivery period shall automatically be extended by a reasonable period if failure to comply with the delivery period is attributable to the above-mentioned obstacles in the supply chain of our subcontractors and their suppliers or to an impediment or event beyond our control which we could not have prevented even by exercising due care, such as force majeure or delays in the delivery of essential raw materials.
4. We shall not be held responsible for delays in or failures of delivery unless culpable conduct on the part of us, our agents or subcontractors can be demonstrated.

V. Dispatch and Transfer of Risk

1. Goods shall be dispatched from our warehouse / ex works (drop shipment) at the customer’s expense and risk. Unless otherwise agreed, we shall determine the route and method of shipment.
2. Goods notified as ready for dispatch must be called off without undue delay, provided that immediate call-off would not result in premature delivery. If dispatch is postponed at the customer’s request, the date of notification that the goods are ready for dispatch shall be deemed the delivery date. In such cases, we shall be entitled to store the goods at the customer’s expense and risk.
3. Any transport damage must be noted on the delivery note. Complaints regarding inadequate packaging shall not be accepted provided that the goods were properly packaged by us.
4. Partial deliveries shall be permitted to a reasonable extent and shall be treated as separate shipments.

VI. Cancellation of Orders and Return of Goods

1. Confirmed orders may only be cancelled with our prior written consent.
   Cancellations of orders relating to goods manufactured in accordance with customer specifications shall not be accepted. If we agree to a cancellation, we shall be entitled to claim liquidated damages amounting to 10% of the sales price without having to provide detailed evidence of the loss incurred. This provision shall neither limit nor replace our general right to claim compensation for losses actually incurred, unless the customer can demonstrate that the actual costs were lower. If goods that have already been delivered are returned, the liquidated damages shall increase to 15%, plus any costs incurred for return transportation.

VII. Warranty and Limitation Period

1. The customer is obliged to inspect the delivered goods without undue delay.
2. Obvious defects (non-conformities) must be reported in writing without undue delay. Hidden defects must be reported without undue delay after their discovery.
3. Goods that do not conform to the contract must be retained for inspection by us or returned to us upon request. No alterations, modifications, repairs or similar work may be carried out on a product that is the subject of a complaint and for which replacement may be claimed.
4. If part or all of the delivered goods are non-conforming, we shall, at our discretion, either attempt to repair or modify the goods or provide replacement goods. Two attempts at remedial performance shall be deemed agreed. Replacement delivery shall be made within a reasonable period, whereby a delivery period shorter than the original delivery period shall be considered unreasonable for the first attempt.
5. The customer’s claim for replacement delivery and reimbursement of expenses in connection with the manufacture of replacement goods shall become time-barred one year after delivery of the purchased goods. NOVATEX shall under no circumstances compensate for loss of turnover, revenue or margin.
6. Goods sold as used and/or second-hand shall be sold without any warranty.
7. The buyer’s warranty rights are conditional upon the buyer having duly complied with its obligations to inspect the goods and give notice of defects pursuant to Section 377 of the German Commercial Code (HGB).

VIII. Terms of Payment

1. Our invoices are payable immediately unless otherwise agreed.
2. If payment of a receivable appears to be at risk as a result of delayed payment of invoices and the customer’s ability to perform is thereby impaired, we shall be entitled to:
   a. make delivery only against advance payment or other security. Section VI No. 1, sentences 2 and 3 shall apply accordingly;
   b. demand immediate payment of all outstanding invoices, irrespective of their respective due dates;
   c. withdraw from all contracts not yet performed and terminate all concluded contracts if the customer fails to comply with our demands for payment after expiry of a reasonable period. Section VI shall apply accordingly.
3. The customer may exercise a right of retention only if the reason for withholding payment arises from the same contractual relationship and the corresponding counterclaim has been undisputedly or finally established or is about to be finally determined. The customer shall only be entitled to set off claims that are undisputed or have been finally established by a court of law.
4. If a customer defaults on payment and thereby requires us to collect the outstanding receivable, the customer shall bear the costs of issuing account statements and of engaging a debt collection agency and/or lawyer.
5. We reserve the right to work with a factoring company.

IX. Retention of Title

1. All goods delivered shall remain our property until all claims arising from the ongoing business relationship have been satisfied. This shall also apply to any current-account balance claims to which we are entitled now or in the future.
2. In addition, the following security interests shall be granted to us. Upon request, we shall release such security interests to the extent that their value exceeds the secured claims by more than 20%.
3. Any manufacture, processing or mixing of materials shall be carried out on our behalf as supplier, without giving rise to any obligation on our part. If our ownership ceases as a result of combination or mixing with other goods, it is hereby agreed that the customer’s ownership of the newly created item shall be transferred to us in proportion to the value of our material in the new item. All goods which are wholly or partly owned by us shall be deemed goods subject to retention of title as security for the outstanding balance.
4. The customer hereby assigns to us all claims and/or proceeds accruing to it from the processing or sale of our material and/or on any other legal grounds, including insurance benefits or claims in tort, together with all other claims, up to the value of the goods supplied by us at the time of delivery. The part of such receivable ranking last and corresponding to the value of our goods shall be assigned to us. We hereby accept the assignment.
5. Our ownership rights may not be circumvented by the resale of the goods to a third-party purchaser as long as payment for the goods has not been made to us. This shall apply in particular to intra-group sales.
6. The customer shall only be entitled, in the ordinary course of business between it and us, to process or sell the goods supplied by us or to collect receivables arising from such transactions. This authority shall be deemed revoked if the customer fails to meet its obligations arising from ongoing transactions, particularly in the event of payment default, deferment of payment vis-à-vis third parties, an application for insolvency proceedings, protest of bills of exchange or cheques, or seizure of the goods. Any proceeds received from assigned receivables after such time must be segregated in a separate account. Collection authorisations, pledges, transfers by way of security and/or declarations of assignment shall not be permitted.
7. Upon request, the customer shall provide us with information concerning the whereabouts of the goods subject to retention of title and the amount of receivables arising from the processing and/or sale of the goods. The customer shall disclose the names and other relevant details of the purchasers and provide all documents and information required to enable us to secure our claims against such purchasers.
8. The customer is obliged to safeguard collected receivables carefully and properly and to remit them to us no later than when our invoices fall due. If collection authorisations are revoked, the customer shall be obliged to disclose all receivables belonging to us and to the customer and, in cases of doubt, demonstrate that parts of the receivables did not arise from the processing and/or sale of our goods subject to retention of title.
9. The customer shall ensure that neither our ownership nor our rights relating to the assigned receivables can be impaired in any way. The customer shall notify us without undue delay if there are any indications that third parties may attempt to interfere with such rights.
10. In the event of conduct by the customer in breach of contract, we shall be entitled to demand the return of the goods subject to retention of title and, where applicable, to demand surrender of the goods against assignment of any claims of the customer against third-party purchasers. Taking back the goods shall be for provisional security purposes only and shall not constitute withdrawal from or cancellation of the purchase agreement, even if instalment payments are in arrears.

X. Data Processing

1. The customer authorises us to collect, store and use data arising from the business relationship and, where we have a legitimate interest in doing so, to disclose such data to third parties for storage, processing and use, in particular for the purpose of debt collection or outsourced debt collection.

XI. Disputes and Applicable Law

1. The place of jurisdiction for all disputes arising from these Terms and Conditions of Sale and Delivery shall be the Local Court of Hanover (Amtsgericht Hannover).
2. The laws of the Federal Republic of Germany shall apply, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and EU sales law.

XII. Severability Clause

1. Should any provision of these Terms and Conditions of Sale and Delivery be or become invalid, the validity of the remaining provisions shall remain unaffected. It is hereby agreed that any invalid provision shall be replaced by a valid provision.

XIII. Force Majeure

NOVATEX shall not be liable for any failure to perform its obligations where such failure is attributable to war, fire, shortages of raw materials required for the manufacture of our products, operational disruptions, civil unrest, interruptions to international transport routes, governmental measures, force majeure or other causes beyond NOVATEX’s control.