NOVATEX GmbH – Allgemeine Verkaufsbedingungen

General

1. These terms of business are legally binding for all commercial and legal transactions between ourselves and our customer provided the customer is a merchant in the sense of § 14 BGB (German CMI Code). They are considered binding for all future business transactions in the known applicable version in force at the time.
2. We do not accept terms contradicting our terms or deviating from them, unless we have consented to their validity prior to the transaction in writing.

Orders and Offers

1. Our offers are subject to modification and amendment without prior advice. If reference is made to weights, performance and colour, such statements represent an approximate value only. The same applies to samples and patterns. The right to technical modifications and amendments remains reserved, provided such modifications are reasonable.
2. Agreed character and properties of the goods offered are those laid down in the product description published by the manufacturer, other publications and advertisements by the manufacturer do not constitute the contractual character of the goods.
3. If an order from customer is qualified as an offer in the sense of § 145 BGB, such offer may be accepted by us within two weeks. Acceptance is performed by issuing an order confirmation. Delivery of the goods replaces the order confirmation.
4. We reserve the right to 5% under or over delivery.
5. Any and all oral side agreements and/or covenants are null and void. All agreements are to be made in writing only.

III. Prices

1. Our prices are quoted in our offers and price lists.
2. We reserve the right to adjust prices if and when an order is delivered three months or more after conclusion of the purchase agreement and if the basis for price calculation has changed during this period, e.g., by price increases imposed by sub-contractors. All other fees, public charges, new taxation, freights and the increase thereof, which have a direct or indirect effect on the price of the goods and making it more expensive than anticipated, will be for the account of the customer unless otherwise required by law. The same applies to partial deliveries against make-and-hold orders.

IV. Delivery Times

1. Delivery timing is always non-committal unless they are expressly confirmed by us. A delivery time starts on the date of the order confirmation. Delivery time will be considered as observed if and when goods are reported ready for shipping, but can actually not be delivered in time through no fault of ours.
2. If the correct and on-time delivery cannot be performed by us due to the failure of a subcontractor to supply in time, we will be entitled to withdraw from the purchase agreement as a whole or in part or to extend the delivery term for as long as the obstruction exists, unless the reason for the failure to supply lies within our sphere of responsibility. Such circumstances will be reported to the customer without undue delay. Upon receipt, customer has the right to demand a statement from us as to whether we will withdraw from the contract or supply the goods within an acceptable period of time. If no such statement from us is forthcoming on demand, customer will be entitled to resign from the agreement. Any contributions already made by customer against fulfilment of the agreement such as prepayments, will be reimbursed by us without undue delay.
3. The delivery term is automatically extended by an appropriate length of time if failure to supply on time is due to such obstructions as described above in the delivery chain of subcontractors and their subcontractors, or if due to an obstacle or event beyond our will and influence which we have not been able to avoid even though an appropriate amount of diligence was used in the case (e.g. Force Majeure, delays in supply of essential raw materials, etc.).
4. We cannot be held responsible for delays or failures in delivery unless there is evidence that we, our agents and employees and subcontractors have acted negligently.

V. Shipment and Transfer of Risks

1. Shipment is affected for the account and on the risk of the customer ex warehouse / ex works (third party deal). Unless otherwise agreed, we will select ways and means of shipment.
2. Goods which are reported as being ready for shipment, must be called off immediately provided that an immediate call off does not lead to premature delivery. If shipment is deferred on request of customer, the date on the Shipping Advice will be considered as the date of delivery. In this case, we will be entitled to store the goods at customer’s expense and risk.
3. Transport damages are to be noted on the delivery note.
   We will not accept claims referring to inadequate packaging, as long as the goods were packed by us in accordance with standard procedures.
4. Partial shipments are allowed in reasonable quantities and are considered independent shipments.

VI. Cancellation of Purchase Order, Return of Goods

1. Confirmed orders can only be cancelled with our prior written agreement.
   Cancellations of orders entailing customised goods that have been produced according to customer’s wish will not be accepted. In the case that a cancellation is accepted, we are entitled to request payment of a lump sum 10% of the sales price as damages without having to substantiate the claim in detail. This provision does, however, not restrict or replace our overall right to claim damages for compensation of losses actually incurred, unless customer can provide proof that the effective costs were lower. In case, that goods already delivered are returned, the compensation will rise to 15% plus any expenses incurred for return transport.

VII. Warranty and Limitations

1. Customer is obliged to inspect goods delivered without any undue delay.
2. Obvious faults and defects (non-compliance) have to be reported in writing without delay. Hidden faults and defects have to be reported immediately after their detection.
3. Non-complying goods are to be held for inspection by us or to be returned on request. No changes, modifications, repairs or the like must be made on a product which is claimed non-complying and for which replacement can be claimed.
4. If some or all of the delivered goods are non-compliant, we will at our discretion either attempt to repair or modify the goods, or supply replacement. Two attempts to rectify faults or defective goods will be considered as agreed. Replacement will be supplied within a reasonable length of time whereby a shorter delivery term as the original delivery term is inappropriate for the first attempt.
5. Customer’s rights to replacement deliveries and compensation of
   expenses in connection with new goods, arelimited to one year after delivery of the purchased item. At no time NOVATEX will compensate any sales or margin losses.
6. Goods which are claimed used and/or second-hand are sold without any warranty whatsoever.
7. A prerequisite for any warranty rights of the buyer is his proper fulfilment of all after inspection and complaint obligations owed to Section 377 of the German Commercial Code (HGB).

VIII. Terms of Payment

1. Our invoices are due for immediate payment, unless otherwise agreed.
2. If accounts receivable appear to be at risk due to deferred payment of invoices and if consequently customer’s performance becomes inadequate, we are entitled to:
   a. Supply against prepayment or other security only. Paragraph VI, No. 1, sentence 2 and 3 applies
   accordingly.
   b. Request immediate payment of all outstanding invoices notwithstanding their maturity.
   c. Cancel all contracts not yet fulfilled by us and withdraw from any agreement concluded if customer fails to comply with payment requests after granting him a reasonable period of time to do so.
   Chapter VI applies accordingly.
3. Customer may retain due payments only when the reason for his refusal to pay is based on the same contractual issue, and provided that this counter-claim has been established beyond doubt and in legally binding form or is due to be decided this way in the near future. Customer’s right to offset his debt against accounts receivable is limited to such claims which are non-disputed and established by legal action.
4. If a customer is in arrears with his payments and forces us to collect the debt, any expenses incurred for the issuing of Statements of Account, appointing a Debt Collecting Organisation and/or an Attorney at Law will be for the account of the customer.
5. We reserve the right to cooperate with a factoring company.

IX. Reservation of Proprietary Rights

1. All goods delivered remain our property until all open accounts of running business have been settled. This applies and includes balances from current accounts, to which we may have a claim now or in the future.
2. In addition, the following securities are granted to us, which will be released by us on request if and when the value thereof is exceeding accounts receivable by more than 20%.
3. Manufacture or material mixing is carried out for us as suppliers, but without any obligation for us. If our proprietary rights become null and void as the item supplied by us is inseparably connected to or mixed with other commodities, it is hereby agreed that the proprietary rights of the customer to the new product will be ceded to us to the extent that represents the value of our material in the new commodity. All goods which are our property (partly or as a whole), are to be considered as goods under retention of title serving as security for settlement of balanced accounts.
4. Customer cedes all proceedings and / or returns which he accrues by processing or selling of our material and/or any or all rights accrued to him due to other legal reasons (including payments by insurance, or from illegal action) including all and any other rights to payments from accounts receivable to the extent of the value of the goods supplied by us at the time of delivery by us. The last-ranking portion of that due payment, which corresponds with the value of our merchandise, is ceded to us. We accept the cession.
5. Our proprietary rights cannot be invalidated by re-selling the goods to a Third Party buyer, as long as he/she has not paid us for it. This applies in particular to intercompany sales.
6. Customer is only entitled to process or sell goods delivered by us or to collect debts resulting from such transactions within the normal scope of the regular business between himself and us. As of today, this right is already recalled if and when customer does not meet his obligations from current business agreements (in particular if payments are in arrears), or in the case of deferred payments towards Third Parties, when insolvency is claimed, Bills of Exchange or Cheques are protested, or in the case of seizure of the goods. Returns from ceded outstanding accounts received after this point in time are to be accrued on a special account (direct debit authorisations, pawning, transfer of securities and/or cession agreements are not allowed).
7. Customer is obliged to inform us on request about whereabouts of the goods under retention of title and on the amount receivable for processing and/or sale of the goods. He has to disclose names and other relevant details of buyers and to provide all documentation and necessary information that will allow us to secure our claims against the buyer.
8. He is obliged to keep any debts collected in good and professional care and to transfer such collected debts to us latest on maturity of our bills. If direct debit authorisations are cancelled, he is obliged to disclose all of our and all of his total accounts receivable and has, in case of doubt, to provide evidence that portions of accounts receivable did not originate from processing and/or selling of our goods under title of retention.
9. Customer must ensure that neither our property nor our rights to the ceded accounts receivable can be affected in any way whatsoever; he will inform us at once if there is any indication that any third party might try to take an influence.
10. If customer’s actions are not in compliance with these terms, we are entitled to demand return of the goods under title of retention, and, if necessary, demand release of the goods by cession of any titles customer may have against Third Party buyers. Any return of goods is demanded as provisional security only; it does not represent a withdrawal from or cancellation of the purchase agreement, even if part payments were allowed in arrears.

X. Data Processing

1. We are authorized by customer to collect, store, and use data resulting from the business connection, and to hand them on to others (in particular for the purpose of debt collection or outsourced debt collection), for storage, processing, and use, if we have a justified interest to do so.

XI. Litigation and Applicable Law

1. The court of jurisdiction to which all disputes arising from these Terms of Sale and Delivery will have to be referred to for judgement is the court of Hannover.
2. The law of the Federal Republic of Germany applies, excluding the UN sales law and EU purchasing law.

XII. Severability

1. Should any of the provisions in these Terms of Sale and Delivery be invalid, the other provisions herein remain unaffected and valid. It is agreed herewith, that invalid provisions are to be replaced by valid provisions.

XIII. Force Majeure

1. Novatex shall not be liable for failure of performing its obligations, if such failure is due to war, fire, shortage of raw materials for production of our products, operational breakdown, riots and disruption of international transport routes, governmental actions, Acts of God, or any other cause reasonably beyond Novatex control.