General terms of sale and delivery for JACKON Insulation GmbH

Valid from: December 2005

I. Conclusion of contract and terms of contract

  1. We only conclude contracts on the following terms of sale and delivery. They shall also apply to all future business relations with the Buyer, even if not explicitly and separately stipulated. Any variation from these terms and conditions shall only be valid if confirmed by us in writing. The Buyer's general terms and conditions are hereby countermanded.
  2. The Buyer shall be notified in writing of changes to these terms and conditions. They will be deemed to have been accepted if the Buyer does not appeal them in writing within one month of the date of receipt of notification. We will specifically draw the Buyer's attention to this consequence at the time of notification.
  3. To the extent necessary, the Buyer shall relay product information to his customers.

II. Offers, delivery specifications

  1. Our offers are subject to change. The Buyer's offers require our written confirmation.
  2. Any documentation accompanying our offers, such as illustrations and drawings, as well as weights and measurements, are only approximations unless we have expressly described them as being binding. We reserve ownership rights and copyrights for cost estimates, drawings and other documentation. Such documents may not be disclosed or made available to third parties without our prior written consent.
  3. The delivered parts shall conform to the technical standards and regulations in force in the Federal Republic of Germany. The Buyer shall bear responsibility for any tests or acceptance inspections of the delivered parts required by foreign technical standards and regulations. Should any tests of this nature be required to be conducted in our works, they shall be performed at the Buyer's expense by inspection companies accredited in the Federal Republic of Germany
  4. All information that determines the scope of our activity requires our written confirmation. That shall apply equally to all information from the Buyer and to our own oral information.

III. Prices and terms of payment

  1. Prices are ex works exclusive of packaging and plus the applicable value-added tax. Changes in the cost of materials or in wage rates arising two months after the conclusion of the contract shall entitle us to change the quoted price accordingly.
  2. Where the price depends on the weight of the parts, it shall be calculated based on the weight of the approved initial sample.
  3. We shall be entitled to demand cash payment. Payment with bills of exchange and cheques shall only result in the discharge of a payment obligation when a permanent payment has been received by us from the bill of exchange or cheque. With the acceptance of bills of exchange whose payment is to occur in foreign countries or out-of-town places, we assume no liability for timely presentation or protest. Discount charges are calculated from the due date of the amount invoiced. Should the Buyer default on his payment obligations, should he in particular not honour cheques or bills of payment or stop making payments, we will be entitled to declare that the whole of the outstanding debt is immediately payable even if we have previously accepted cheques and bills of payment.
  4. Invoices shall be payable with 2% discount within 8 days or without deduction 30 after date of invoice.
  5. The set-off of counterclaims by the Buyer as well as the assertion of any rights of detention shall be excluded unless the Buyer's claims are undisputed or have been declared legally valid by a court of law. Should we have reasonable grounds to doubt the Buyer's ability to pay, we shall be entitled even after the conclusion of the contract to make delivery dependent on an advance payment or provision of security on the part of the Buyer such that the risks in excess of the retention of title are covered.

IV. Delivery

  1. The delivery dates stated in our order confirmations or otherwise agreed in writing with the Buyer shall apply. Compliance with the delivery dates depends on the timely receipt of all documentation to be provided by the Buyer as well as the Buyer's compliance with the agreed payment conditions and other obligations. If these requirements are not fulfilled in time, the delivery period will be extended by the duration of the delay.
  2. The delivery date shall be deemed to have been met if dispatch or collection has occurred within the due date. If the delivery is delayed due to reasons for which the Buyer is responsible, the delivery date shall be considered as having been met through notice of readiness for dispatch within the due date. While we shall endeavour to meet the desired delivery times, due to the known traffic problems, we accept no responsibility for their observance.
  3. When we carry out a shipment, the vehicle shall be unloaded by the Buyer. The Buyer shall act without delay and at his own risk. If the carrier also participates in the unloading, this shall also be at the Buyer's own risk.
  4. Should we be prevented from fulfilling our contractual duties by the occurrence of unforeseeable, exceptional events that we, despite exercising reasonable care according to the circumstances of the case, could not prevent – no matter whether they occur on our or a subcontractor's or vicarious agent's premises – such as disruptions of operations, strikes, lockouts, intervention by the authorities, delays in the delivery of essential raw and construction materials, energy procurement problems or delays in dispatch, the delivery period will be delayed, if the delivery or service does not become impossible, by the duration of the impediment. If the delivery or service becomes impossible as a result of the above-mentioned circumstances, we shall be relieved of any obligation to deliver. We may only invoke the aforementioned circumstances if we have informed the Buyer thereof without delay.
  5. If in the above-mentioned cases the delivery date is delayed by more than one month, the Buyer will be entitled to withdraw from the contract. The assertion of any claims for damages in this respect is excluded.
  6. If shipping or delivery is delayed at the Buyer's request, we shall be entitled charge storage costs equal to half a percent of the net amount invoiced for every month or part of a month, starting one month after notification of readiness for dispatch. These storage costs shall be limited to five percent of the net amount invoiced unless we provide evidence of higher costs.
  7. Partial deliveries are permitted to a reasonable extent.

V. Dispatch and transfer of risk

  1. The risk shall be transferred to the Buyer upon dispatch or collection. If shipment is delayed on grounds that lie within the competency of the Buyer or his vicarious agent, the risk shall be transferred to the Buyer on the day of the goods' readiness for dispatch.
  2. In principle we shall insure the entire shipment at the Buyer's expense through a transport insurance in line with industry standards inclusive of loading and unloading as well as delivery of the goods to the installation site directly after unloading. Further insurance agreements will only be concluded at the Buyer's written request and against advance payment.

VI. Retention of title

  1. The delivered goods remain our property until all due claims have been settled in full. For open accounts the reserved property is deemed to be security for the amount outstanding to us.
  2. In the event of the Buyer paying by cheque and our issuing a refinance bill for this purpose, retention of ownership will only cease when no further claims relating to this bill can be made of us.
  3. The resale of goods by the Buyer is permitted if this occurs in the course of ordinary business dealings. The Buyer will transfer his claims arising from the right of resale of the articles subject to retention of ownership title, particularly payment claims made of his customers, to us with immediate effect. We shall accept this transfer. The Buyer is obliged to indicate this transfer to his debtors at our demand. The Buyer has to inform us of the claims and identities of his debtors.
  4. The Buyer is entitled to collect claims that result from the resale. On default of payment or as soon as we become aware of circumstances which, according to accepted business practices, would diminish the creditworthiness of the Customer, we are entitled to withdraw this right.
  5. The further working of articles subject to retention of ownership title will be realised for us as the manufacturer in the context of § 950 BGB (Civil Code). In the event of articles subject to retention of ownership title being processed or mixed with goods that are not our property, we shall acquire joint ownership of the new article to a degree equivalent to the relationship of the net invoice value of the article to the net invoice value of the other goods used at the time of processing or mixing.
  6. The transfer of ownership by way of security or the hypothecation of goods that are our property is not permitted. In the event of seizure of articles subject to retention of ownership title by third parties, particularly seizure in the context of writ of attachment, the Buyer must indicate our ownership of the goods and inform us immediately by forwarding us a copy of the bailiff’s record of levy of execution.
  7. In the event of a delay in payment on the part of the Buyer, or in case of any other non-fulfilment of his contractual obligations by the same, we shall be entitled, after setting an appropriate period of grace, to prohibit the further processing of the goods delivered by us, and to enter the Buyer's premises to this end. Taking back the goods will not constitute withdrawal from the contract. Further, if the Buyer does not discharge his liabilities when due, we shall be authorized to utilize the reserved goods and other security, with the greatest possible consideration of the interests of the Buyer, at any time and without court proceedings. This utilization may only occur if we have given prior warning of this to the Buyer at least 14 days in advance.
  8. Should the value of the security granted exceed our claims by more than 20%, we shall be obligated to the re-transfer or release of security of our choice in this amount at the request of the Buyer.

VII. Warranty

  1. The warranty period will be twelve months. It will commence with the passage of risk.
  2. In the event that our delivery is defective, and that this is to be attributed to an upstream supplier or to a carrier, we assign herewith our claims in this respect to our suppliers and carriers with regard to fulfilment.
  3. The Buyer must notify us in writing of any defects without delay and at the latest within a period of five working days from receipt of goods. Any defects that cannot be detected within this period in spite of a careful examination are to be notified in writing immediately after their discovery. The Buyer must give us the opportunity to thoroughly examine the defects within a reasonable amount of time ourselves or have them examined by a third party If our delivery has undergone further work, it will be the Buyer's duty to prove that the asserted defect has not been caused by the further work.
  4. In the case of a legitimate claim, we have the right within a reasonable period of no less than 14 days after our own inspection to rectify the defect or to deliver a replacement. If the remediation or replacement is unsuccessful, the Buyer will be entitled to reduce the price or to demand the annulment of the contract. The same applies if we allow a reasonable deadline given to us to elapse without success.
  5. Only the condition of the articles of sale expressly agreed with the Buyer applies. To the extent that reference is made in our product description, advertising or other documentation on material properties intended for the Buyer to a German or European standard, the properties required in the standard are deemed to have been agreed. Any additional descriptions in our brochures and other documentation only comprise the indication of a general feasibility, and in no way a guarantee for their use and treatment in individual cases. The use and treatment of articles of sale for any purposes other than those agreed with us or provided for in our application examples, in particular a use and treatment contrary to our assembly and processing instructions occur at the Buyer's own risk.
  6. Reasonable deviations from the agreed properties of up to plus/minus 10% are permitted.
  7. Recourse claims by the Buyer against us under section 478 of the German Civil Code shall be limited to the legal scope of warranty claims by third parties against the Buyer and are subject to the condition that the Buyer has complied with the requirement to register a complaint with us in accordance with Section 377 of the German Civil Code.
  8. For any additional claims of the Buyer, in particular for compensation of damages that have not occurred in the delivered goods themselves, we will only be liable for intentional or grossly negligent breach of material contractual obligations by our legal representatives or vicarious agents. Compensation for purely financial loss, such as loss of production, a reduction in the same, or loss of profit is excluded.
  9. The exclusion of liability does not apply in those cases where, under product liability laws, we are liable for personal injuries or damage to privately used property arising from defects in the delivered goods. The exclusion also does not apply in cases in which properties that we have expressly warranted are lacking, if and when the warranty served the purpose of securing the Buyer against damage that did not occur to the merchandise itself.
  10. In the event of defects that only become apparent once the delivered goods are resold to a third party, the Buyer may only exercise rights against us if and to the extent that the Buyer has ensured that our agreed rights have not been impaired by the agreement.
  11. It is the Buyer's duty to prove, in the event of incorrect processing and treatment of the delivered goods, that the incorrect work is not the cause of the asserted defects and damage.

VIII. Liability for other obligations

Claims for damages resulting from impossibility of the execution, delay, the positive breach of contract, fault in the course of concluding a contract, and wrongdoing are excluded or limited to the extent stated above in paragraph VI.

IX. Materials provided by the Buyer

  1. If materials are provided by the Buyer, they shall be delivered at the Buyer's own cost and risk, in good time and in perfect condition, with an appropriate quantity premium of at least 5%.
  2. In the event of non-fulfilment of these conditions the delivery period will be extended accordingly. The Buyer shall bear any additional costs engendered by any interruption in production for which he is responsible.
  3. If faults become apparent in the delivered goods, it is the Buyer's duty to prove that the faults were not caused by the materials supplied by him.

X. Place of fulfilment and jurisdiction

  1. The place of fulfilment for all obligations arising out of the contractual relationship is Arendsee.
  2. The place of jurisdiction for all disputes arising from the contractual relationship, if the Buyer is a business, a legal entity under public law or a special public fund, is Steinhagen. We are, however, also entitled to take action against the Buyer at the court with jurisdiction at his principal place of business.
  3. German law shall apply. Application of the United Nations Convention on the International Sale of Goods (CISG) of the 11th of April 1980 is hereby excluded.

XI. Data protection

We are entitled to save, transmit, edit and delete personal data relating to the Buyer. The Buyer shall be informed of this in compliance with § 26 BDSG (Federal Data Protection Act).

XII. Miscellaneous

Where these terms and conditions contradict the individual provisions of a purchase order, the individual provisions of the purchase order shall take precedence over the terms and conditions. If individual provisions should prove to be ineffective, the contracting party shall replace the ineffective provisions with provisions that best meet the economic purpose of the ineffective provisions.

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