Liefer- und Zahlungsbedingungen der ASTOR Schneidwerkzeuge GmbH („ASTOR“)

Terms of delivery and payment of ASTOR Schneidwerkzeuge GmbH (ASTOR)

Section 1

Application of the Terms of delivery and payment, Reservation of changes

(1) These Terms of delivery and payment of ASTOR (hereinafter referred to as ‘AGB’) shall apply to all business relations with Customers, who are entrepreneurs in accordance with Section 14 BGB (German Civil Code), legal persons under public law or special funds under public law.

(2) The AGB shall especially apply to all contracts dealing with the sale and/or the supply of movable items (hereinafter called ‘goods’), irrespective of whether ASTOR itself manufactures the goods or obtains them from suppliers (Sections 433, 651 BGB). They shall be applicable in the respective version also to future contracts concluded with the same Customer on the sale and/or the supply of movable items, with no need for ASTOR to refer expressly to that in every single case. ASTOR shall, in the case of amendments of the AGB inform the Customers without delay.

(3) These AGB shall apply exclusively. Any deviating, conflicting or supplementing General Terms of the Customer shall, at all times and only in so far as ASTOR has expressly agreed to them, become integral parts of the contract.

(4) Individual arrangements made with the Customer in a given case shall have priority to these AGB. The content of such arrangements shall, however, be governed at all times only by a written agreement or ASTOR’s written confirmation.

(5) Legally relevant declarations and notifications, which are to be submitted towards ASTOR by the Customer after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of cancellation etc.) are required to be in writing in order to be effective.

Section 2

Offer and conclusion of contract / Binding force of the offer

(1) ASTOR’s offers shall, especially regarding prices, quantities, delivery deadline, availability and ancillary services, be subject to change and non-binding, unless they are expressly marked as being binding or show a defined deadline for acceptance. This shall also be applicable if and when ASTOR has provided the Customer with catalogues, technical documentations (such as plans, calculations etc.), other product descriptions or documents. ASTOR shall retain all rights as to title and copyright in regard to all information and documents made available to the Customer.

(2) An order placed by the Customer by phone, email, fax or letter shall be considered a binding contractual offer. ASTOR shall reserve the right to accept this offer within 14 working days in order to check the up-to-date availability of the goods ordered. Confirming receipt of the order to the Customer by email or fax shall not mean a declaration of acceptance. The offer of the Customer shall not be accepted and the contract shall not be concluded until ASTOR sends an explicit order confirmation by email, fax or letter, or executes the contract within the acceptance period (i.e., handing over to the forwarding agent or notification that the goods are ready to be collected at the place of business).

Section 3

Condition of the goods / Custom-made products / Processing instructions

(1) Information from ASTOR on the goods and their presentation (e. g., images, weights, dimensions, practical values and other service descriptions) in catalogues, on the web site and in advertising media shall be deemed only approximately authoritative, unless its applicability for the purpose contractually envisaged requires precise conformity. These are not guaranteed physical characteristics, but rather descriptions or labels of the product.

(2) If a Customer orders custom-made cutting tools from ASTOR, he shall have to inform in a comprehensible way about the envisaged purposes of use, the technical requirements and possible special features which shall have to be observed while using the tools and, as the case may be, give a special processing instruction. The information furnished by the Customer shall authoritatively determine the nominal condition of the custom-made product vis-à-vis ASTOR.

Section 4

Non-availability of goods after contract conclusion, Force majeure

(1) If it becomes apparent after contract conclusion that the goods are not available at ASTOR, due to the lack of being supplied itself with additional parts, goods or raw material, ASTOR shall be entitled to cancel the contract, unless it will be in a position to obtain a replacement within a reasonable time. ASTOR shall inform the Customer that the goods will not be available on time and execute the intended cancellation promptly. In the case of cancellation, return services rendered by the Customer shall be reimbursed without delay.

(2) ASTOR shall not be liable for impossibility of delivery or for other delivery delays if these have been caused by Force Majeure or other events unforeseeable at the time of the contract conclusion which ASTOR is not responsible for (e.g. operating disruptions of all kinds, difficulties in procuring materials or power, transport delays, strikes, lawful lockouts, etc.). If such events significantly obstruct the delivery or service on the part of ASTOR or render them impossible, and if the obstruction is not of a transient nature, ASTOR shall be entitled to withdraw from the contract. If the delay is perceived to be of a transient nature, the delivery or supply period is deemed to be put back by the same period as the obstruction plus an appropriate starting time.

(3) The rights of the Customers under Section 8 of these AGB and ASTOR’s legal rights shall, especially in the case of the exclusion of the performance obligation (impossibility or unreasonableness of performance and/or supplementary performance) remain unaffected.

Section 5

Passing of risk, Delivery and Delivery costs, Overdelivery and Underdelivery

(1) Deliveries shall be made ex works at ASTOR’s place of business, which is, at the same time, the place of performance. It shall be the Customer’s choice to collect his ordered goods at the place of performance or to have them collected by a forwarding agent. Alternatively, ASTOR delivers the goods through a parcel service or a forwarding agent to another destination (sale to destination). The Customer shall bear the delivery costs.

(2) The risk of accidental loss or the accidental deterioration of the goods is transferred not later than with the handover to the Customer, with the beginning of the loading operation being authoritative. In the case of sale to destination, however, the risk is transferred to the Customer as early as with the delivery of the goods to the parcel service or the forwarding agent. Storage costs incurring after the transfer of the risk shall be borne by the Customer.

(3) The designation of the expected period of delivery given at the time of the contract conclusion is an approximate designation of time in which the Customer may expect the goods to be delivered. It does not mean a binding fixation of the delivery time. Binding dates of delivery shall need to be agreed in writing and need to be designated expressly as such. As soon as the goods are available, ASTOR shall inform the Customer through the commissioned forwarding agent about a delivery date during the customary business hours.

(4) ASTOR shall have the right of instalment delivery if the Customer can make use of the instalment within the frame of the contractual purpose, if the delivery of the remaining goods ordered is secured and no significant additional expenses arise thereby for the Customer (unless ASTOR declares its readiness to bear these expenses).

(5) If ASTOR agrees to take back the goods without being obligated to do so by contract or law, the customer shall bear all costs associated with the return, including any additional expenses to ASTOR.

(6) ASTOR reserves the right of an overdelivery or underdelivery of up to 10 % or at least one piece of the quantity of goods ordered. In each case of an overdelivery or underdelivery the purchase price to be paid by the Customer increases or decreases, respectively, in accordance with the deviation of the quantity of goods delivered from the quantity of goods ordered.

Section 6

Prices and payment terms

(1) Unless otherwise agreed in specific instances, ASTOR’s up-to-date prices at the time of contract conclusion shall apply. Unless otherwise noted, the prices are net prices ex warehouse and do not include the value-added tax at the statutory rates applicable at the time and costs of transport, packaging, export (e.g. customs and other fees) and forwarding costs which may arise. ASTOR shall not take back transport- and other packaging material in accordance with the packaging regulations. The Customer shall acquire the property thereof. Unless otherwise agreed, reasonable price changes as a result of changed prices for raw materials, wages and cost of distribution shall remain reserved for deliveries made four months or more after contract conclusion. In case of such price change exceeding more than 50 per cent of the list prices valid at the time of contract conclusion, the Customer shall have the right to withdraw from the contract.

(2) For financing purposes ASTOR shall have the right to assign due claims against the Customer to a factoring company. In such a case, the assignment will be notified in the invoice. The Customer shall be obliged in such event to make the payments solely to the recipient of payment stated in the invoice and may not render payment to ASTOR with discharging effect (Section 362, no. 1 BGB).

(3) Unless otherwise agreed in writing, full payment shall be due immediately upon receipt of the invoice and have to be effected not later than 14 days from due date without deduction.

(4) In the absence of payment the Customer shall be in delay after 14 days from the receipt of the invoice, with no need for a reminder from ASTOR. During the period of delay, interest at the statutory rate of default charges applicable at the time shall have to be paid on the purchase price. ASTOR reserves the right of assertion of any further damages caused by delay. ASTOR’s claim to the commercial default interest (Section 353 HGB, German Commercial Code) shall remain unaffected vis-à-vis merchants.

(5) The Customer shall only be availed of the right to offset or retain payments if his counterclaim has been established in law, has been acknowledged or is undisputed. In case of defects, the Customer’s counterclaims shall remain unaffected. In such an event, the Customer does have a right of retention only, if it is in reasonable relation to the defects and the expected costs of supplementary performance.

(6) If, after contract conclusion, it becomes apparent that ASTOR’s claim for the purchase price is endangered by the Customer’s lacking solvency (e.g., if an application has been made to open insolvency proceedings), ASTOR shall be entitled under the legal provisions governing the refusal of performance and – as the case may be, after setting a deadline – to withdraw from the contract. In case of contracts concerning the production of non-fungible objects (custom-made items) ASTOR can declare the cancellation immediately; the legal regulations governing the dispensability of setting deadlines in withdrawal cases shall remain unaffected.

Section 7

Retention of title

(1) ASTOR shall retain title in the delivered goods until all present and future claims (called hereinafter ‘secured claims’) against the Customer resulting from the business relationship are fully met.

(2) For the duration of the retention of title, the Customer may not pledge the goods under retention of title or use them as security. The Customer shall be obliged to notify ASTOR without delay in writing when and insofar as there are any accesses of third parties to the goods which are ASTOR’s property.

(3) In case of the Customer’s conduct in contravention of the contract, especially non-payment of the purchase price due, ASTOR shall have the right to withdraw from the contract or/and to reclaim the goods due to the retention of title according to the legal provisions. Such return request shall not include the rescission of the contract at the same time; rather, ASTOR shall be entitled to demand only the surrender of the goods and to reserve rescission. If the Customer does not pay the purchase price due, ASTOR shall be entitled to claim these rights only if/when ASTOR has unsuccessfully set a reasonable period of time for the Customer to make the payment or setting such deadline will be dispensable in line with the legal provisions.

(4) The Customer shall be authorised to resell the goods under retention of title in the proper course of business and/or to process them. In that case the following terms shall apply in addition

a. The retention of title extends to any and all products resulting from the processing, commingling or combining of the goods at their full value, with ASTOR being deemed the manufacturer. Where, after processing, commingling or combination with goods belonging to third parties, said third parties still have their rights of ownership, ASTOR shall become co-owner in the ratio of the invoice value of the processed, commingled and combined goods. Incidentally the same shall apply to the resulting product as to the goods delivered under title retention.

b. The customer shall already now assign to ASTOR, by way of security, any and all claims from the resale of the goods or the products against third parties in full or to the extent of any co-ownership interest of ASTOR in accordance with the preceding paragraph. ASTOR shall accept the assignment. The obligations of the Customer stated in Section 7, Par. 2 shall also apply in view of the assigned claims.

c. The Customer shall, besides ASTOR, remain authorized for the collection of the claims. ASTOR binds not to collect the claims as long as the Customer meets his payment obligations vis-à-vis ASTOR, does not get into payment arrears, has not filed a petition for the opening of insolvency proceedings and there is no other deficiency in his capabilities. If such is the case, however, ASTOR shall be entitled to demand that the customer notifies it of the assigned claims and the debtors thereunder, makes all statements required for collection, delivers the related documents, and notifies its debtors (third parties) of the assignment.

d. If the realisable value of the securities exceeds ASTOR’s claims by more than 10 per cent, ASTOR shall release securities at its own option upon the Customer's request.

Section 8

Defects

(1) The legal provisions shall apply to the rights of the Customer in case of defects of quality and title (including wrong and short delivery as well as improper assembly or faulty assembly instructions) insofar as not otherwise determined below. The special legal provisions in the case of final delivery of the goods to a consumer (suppliers' recourse according to Sections 478, 479 BGB) shall be unaffected in all cases.

(2) ASTOR’s liability for defects is based on the agreed nominal condition of the goods. Insofar as the nominal condition has not been agreed upon, the legal provisions shall have to be applied to assess whether there is a defect or not (Section 434, para. 1, sentences 2 and 3 BGB).

(3) An underdelivery of up to 10 % of the quantity of goods ordered according to Section 5, para. 6 AGB shall not represent a material defect under Section 434, para. 3 BGB.

(4) Claims for defects by the Customer shall require that the Customer met his inspection and reproof obligations (particularly according to Sections 377, 381 HGB). Any defect discovered during inspection or later shall have to be notified to ASTOR in writing without delay. The report is deemed as immediately if it is made within two weeks whereby the timely despatch of the report shall be sufficient in order to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Customer shall have to report obvious defects (including wrong and short delivery) in writing within 7 working days of receipt of goods, whereby, in that case too, the timely despatch of the report shall be sufficient in order to meet the deadline. If the Customer fails to duly inspect the goods and/or report any defects, ASTOR shall accept no liability for such defects.

(5) If the delivered goods are faulty, ASTOR can initially choose whether it shall provide supplementary performance by remedying the defect or by delivery of goods free of defects. ASTOR’s right to refuse supplementary performance pursuant to legal requirements shall remain unaffected.

(6) ASTOR shall be entitled to make the owed supplementary performance conditional upon the Customer paying the due purchase price. The Customer shall, however, be entitled to retain a part of the purchase price which is reasonable in the ratio to the defect.

(7) The Customer shall have to give ASTOR the time and opportunity for the supplementary performance owed, especially to hand over the faulty goods for inspection. In the event of supplementary performance by way of a replacement delivery, the Customer shall have to return the defective object pursuant to the legal provisions. The supplementary performance does neither include the disassembly of the defective object, nor its assembly, unless it had initially been ASTOR’s duty.

(8) If there is actually a defect, ASTOR shall bear the expenses necessary for inspection and supplementary performance (particularly the costs of transport, route, work and material), with the exception of disassembly and assembly costs. If a Customer's demand to eliminate a defect turns out to be unjustified, ASTOR may claim from the Customer compensation of the expenses thereby incurred.

(9) If supplementary performance has failed or if an appropriate deadline for supplementary performance to be set by the Customer has fruitlessly expired or has become dispensable pursuant to the legal provisions, the Customer may withdraw from the contract or reduce the purchase price. There shall, however, be no right of rescission if the defect in the goods is negligible.

(10) The Customer shall be entitled to seek redress or compensation of fruitless expenses only in accordance with Section 9 AGB. Otherwise, such claims shall be excluded.

Section 9

Other liability

(1) Insofar as not otherwise derived from these AGB including the following provisions, ASTOR shall be liable according to the relevant legal regulations in case of breaches of contractual and extra-contractual obligations.

(2) ASTOR shall, irrespective of which cause in law (particularly arising from impossibility, delay, defective or wrong supply, breach of contract, breach of duties in contractual negotiations and unlawful acts) - be liable for damages in cases of intent and gross negligence. In cases of simple negligence ASTOR shall be liable only

a. for damages arising from injury to life, limb or health and

b. for damages arising from violations of a material contractual duty (obligations the proper fulfilment of which constitutes a condition sine qua non for the correct execution of the contract and on the fulfilment of which the customer regularly relies and may rely). In that case, ASTOR’s liability shall be however limited to the reimbursement of the foreseeable, typically occurring damages.

(3) The preceding liability exclusions and restrictions of liability shall count to the same extent also for ASTOR’s organs, legal representatives, employees and other vicarious agents. They shall however not apply if ASTOR has maliciously concealed the defect or assumed a warranty for the condition of the goods. They shall also not concern claims of the customer under the product liability law.

(4) In so far as ASTOR provides technical information or acts as an adviser and this information or advice is not part of the contractually agreed scope of services owed by him, this shall be done free of charge and with the exclusion of any liability.

(5) The Customer cannot withdraw from the contract or cancel it due to an infringement of an obligation not constituted by a defect in the goods supplied if the infringement of the obligation is not attributable to ASTOR. A free right of termination of the Customer (in particular according to Sections 651, 649 BGB) is excluded. Otherwise the legal requirements and legal consequences shall apply.

Section 10

Statute of limitation

(1) Notwithstanding Section 438 (1) no. 3 BGB and Section 634 a (1) nos. 1 and 3 BGB the general limitation period for claims from defects of quality and title shall be one year from delivery, or, insofar as acceptance is required, from acceptance. Special legal provisions for in rem claims to return to third parties (Section 438 (1) no. 1 BGB), in cases of fraud (Section 438 (1) no. 3 BGB) and claims in the supplier's recourse on final delivery to a user (Section 479 BGB).

(2) The aforementioned limitation periods of commercial law also apply to the Customer's contractual and extra-contractual claims for damages based on a defect in the goods, unless the application of the regular legal limitation period (Sections 195, 199 BGB) would lead to shorter limitation periods in specific instances. They shall generally not apply in the event of intent or malicious concealment of the defect or, insofar as ASTOR has given a quality guaranty for the goods. Additionally, they shall not apply to damage claims in the event of gross negligence, culpable breach of material contractual obligations and culpably caused injury to life, limb or health. The statutory periods of limitation of the Product Liability Law shall remain unaffected in any case.

Section 11

Final provisions

(1) Solely the laws of the Federal Republic of Germany shall apply, with the exception of Private International Law and the UN Sales Convention.

(2) If individual provisions of these General Business Terms are or become legally invalid, the validity of the other provisions shall not be affected.

(3) If the Customer is a merchant, a legal person under public law or special fund under public law or is without general legal domicile in the Federal Republic of Germany, the exclusive place of jurisdiction for all disputes from the business relation between ASTOR and the Customer shall be the registered office of ASTOR. Any mandatory provisions of applicable law providing for exclusive jurisdiction shall remain unaffected by this clause.