Terms and Conditions

Terms and Conditions of Delivery and Payment of Porcher Industries Germany GmbH


I. General
1. These Standard Terms of Sale and Delivery shall apply to all contracts for the sale of goods and the performance of services (hereinafter referred to as ”Contracts”) concluded by us with our customers (hereinafter referred to as ”Purchasers”) even if we supply goods or perform services for Purchasers and are aware of standard terms of purchase contracts of the Purchaser in deviation from these Standard Terms. Any conditions of the Purchaser in deviation from these Standard Terms are hereby explicitly rejected.

2. These Standard Terms shall apply only to Contracts between ourselves and Purchasers who are either public bodies or companies or entrepreneurs in the sense of Section 14 of the German Civil Code.

II. Conclusion of Contract
A Contract shall not be deemed to have been concluded until and unless it has been confirmed in writing by us. Agreements reached orally and amendments to any Contract shall not be binding unless confirmed by us in writing. This shall also apply to any guarantee to be given by us, including without limitation guarantees as to specific properties of the goods to be supplied under the Contract and to agreements concerning specific properties of goods to be supplied under the Contract or the fitness of said goods for a specific purpose.


III. Prices
1. All prices quoted by us are quoted ex works, not including discounts or rebates or special packaging or carriage or any insurance concluded upon the instructions of the Purchaser. Value added tax will be charged by us and shall be paid by the Purchaser at the applicable rate in addition to the prices quoted.

2. A charge for packaging will only be made in the case of goods shipped in crates or in special packaging at the request of the Purchaser. In the event that the crates used for the delivery of goods under the Contract are returned to us by the Purchaser carriage paid in undamaged condition within two months of the delivery of the goods under the Contract, we shall credit to the Purchaser the amount previously charged to the Purchaser for said crates. In the event that goods supplied under the Contract are shipped in hired containers, the cost of carriage shall be borne by the Purchaser and the hire charges for said containers shall be borne by us.

IV. Invoices and Terms of Payment
1. We shall only except cheques, bills of exchange and other means of payment by specific prior agreement and on account of payment and any collection charges and discount payable in connection with the negotiation of such cheques. bills of exchange or other means of payment shall be borne by the Purchaser. Bills of exchange and securities provided by the Purchaser shall also be used for settling our claims in any liquidation proceedings. In the case of payment by cheque or bills of exchange, the amount owed to us shall not be deemed to have been paid until the cheque or bill of exchange has been collected.

2. Should the Purchaser be in arrears with the payment of any amount owed to us, we shall be entitled to require the Purchaser to pay interest at 8 % above the then base rate of the European Central Bank. We shall be entitled to prove that the loss or damage suffered by us is higher than the amount of such interest, in which case the Purchaser shall pay such higher amount to us in lieu of such interest.

3. In the event that the Purchaser is in arrears with the payment of any amount owed to us or a prudent commercial assessment of the financial situation of the Purchaser indicates that any such amount may become uncollectible, we shall be entitled to require immediate payment of all amounts owed to us by the Purchaser and said amounts shall become due and payable immediately.

4. The Purchaser shall not be entitled to exercise any right of setoff against any amount owed to us except with respect to claims which are not disputed by us or in respect of which an enforceable judgement has been rendered and shall not exercise any right of retainer against any amount owed to us except with respect to claims based on the same Contract. In the event of rights of retainer of the Purchaser arising out of defects in goods supplied by us, any amount retained shall not exceed the price payable for such defective goods by more than 100 %.

5. We shall be entitled to assign any of our rights under Contracts with the Purchaser.

6. Amounts owed to us shall be deemed to have been paid in good time if they are credited to our bank account in good time; it shall not be sufficient for payments to have been dispatched to our bank in good time.

V. Retention of Title
1. Until any amounts owed to us by the Purchaser in connection with its business relations with us have been paid to us, we shall retain title to the goods supplied to the Purchaser, provided however that the Purchaser shall be entitled to resell or process such goods in the normal course of its business.

2. In the event that we repossess goods supplied to the Purchaser or assert our title to such goods because of payment arrears of the Purchaser, we shall be deemed to have rescinded the Contract for said goods. We shall also be entitled to require the Purchaser to return to us any goods supplied by us to the Purchaser to which we retain title in the event that said goods are not handled properly by the Purchaser or the Purchaser is otherwise in breach of the Contract. In any such case, we shall not be deemed to have rescinded the Contract by requiring the Purchaser to return goods to which we retain title.

3. In the event that the Purchaser processes or resells goods to which we retain title, the following provisions shall apply:

a) The Purchaser shall cease to be authorized to resell or process goods to which we retain title in the normal course of its business in the event that the Purchaser suspends payment or an application for the institution of insolvency or composition proceedings is made against the Purchaser. In any such case, the Purchaser shall be obligated to return to us any goods to which we retain title which it has not yet processed or sold upon first demand by us and we shall credit to the Purchaser the proceeds realized from the best possible sale of such goods. Any revocation of the right of the Purchaser to resell or process goods to which we retain title in the normal course of its business or demand made by us for the return of such goods shall not constitute a rescission of the Contract for such goods.

b) The Purchaser shall not pledge or transfer title to goods to which we retain title or claims assigned by the Purchaser under paragraph d) hereinbelow by way of security.

c) By processing goods to which we retain title, the Purchaser shall not acquire title to the goods produced by such processing and such processing shall be deemed to have been effected on our behalf but without creating any liability on our part. In the event that goods to which we retain title are processed by the Purchaser, we shall be deemed to have acquired a share in the title to the goods produced by such processing of the same value as the amount invoiced to the Purchaser for such goods that are processed.

d) The Purchaser hereby assigns to us all amounts owing to him in respect of the resale of goods to which we retain title or the sale of goods produced by the processing of goods to which we retain title always provided that the amount assigned shall be limited to the amount invoiced to the Purchaser for the goods concerned to which we retain title. Subject to the proviso stated in Paragraph e hereinbelow, the Purchaser shall be obligated to notify us promptly of any conflicting assignments to third parties of amounts owing to the Purchaser in respect of the resale of goods to which we retain title or the sale of goods produced by the processing of goods to which we retain title.

e) In the event that the Purchaser sells its claims for amounts payable as part of a genuine factoring transaction, the Purchaser shall assign its respective claims against the factor to us and shall transfer to us the pro rata share corresponding to goods to which we retain title in the proceeds of such factoring transaction. In the event that the Purchaser is more than ten days in arrears with the payment of any invoice issued by us or the financial circumstances of the Purchaser deteriorate significantly, the Purchaser shall be obligated to notify the factor of such assignment. We hereby accept such assignment.

f) We shall not collect such amounts assigned to us by the Purchaser always provided that the Purchaser meets its payment obligations towards us in good time. Upon request by us, the Purchaser shall be obligated to notify us of the names of the debtors with respect to such amounts and to notify said debtors that the amounts owed to the Purchaser have been assigned to us. The Purchaser shall be entitled to collect such amounts itself provided that the Purchaser meets its payment obligations towards us in good time and does not receive any instructions to the contrary from us.

g) The retention of title provided for in this Section V shall continue to apply in the event that individual invoices issued by us to the Purchaser are included in a clearing account and balanced out, except where the resulting balance is zero.

h) We hereby undertake to release securities selected at our discretion to which we may be entitled under this Section V upon the request of the Purchaser in the event and to the extent that the value of such securities, taking into account the value added by the Purchaser, exceeds the amount owed to us by the Purchaser by more than 10 %.

i) The Purchaser shall notify us immediately of any attachment of goods to which we retain title and of the person affecting such attachment.

j) In the event of the suspension of payment by the Purchaser, the Purchaser shall be obligated to send us an inventory of goods to which we retain title, including any such goods that have already been processed, which remain in its possession and a list of amounts owed to it by third parties in respect of goods to which we retain title together with copies of the relevant invoices issued by the Purchaser.

VI. Delivery
1. Unless otherwise expressly agreed between the Purchaser and ourselves, any delivery dates stated by us shall be deemed to be approximate estimates and shall not be binding on us.

2. Any delivery deadlines stated by the Purchaser shall not be binding on us unless expressly confirmed by us in writing.

3. We shall not be liable for any delay in the delivery of goods as a result of any delay in the delivery to us of the goods concerned or the raw materials required for the production of such goods.

4. We shall not be liable for any delay in the delivery of goods under a Contract by reason of force majeure or other circumstances which we could not have prevented by the exercise of due care having due regard to the circumstances of the case, preventing the performance of the Contract by us or making such performance unreasonably difficult, including without limitation material procurement problems occurring following the conclusion of the Contract which could not reasonably have been foreseen or prevented, industrial disturbances and disputes, shortages of personnel or means of transport, energy supply problems or acts of authorities, including such circumstances affecting ourselves or any of our subcontractors. In any such circumstances, we shall be entitled to postpone the delivery of the goods under the Contract by the duration of any such circumstances plus a reasonable period for restarting production or to rescind the part of the Contract which has not yet been performed in whole or in part. We shall only be entitled to rely on any such circumstances in the event that we notify the Purchaser promptly upon the occurrence thereof. In the event that we are released from our obligation to supply goods under any Contract or the delivery of such goods is delayed by any such circumstances, the Purchaser shall not be entitled to claim damages of us with respect to the non-performance or delay in the performance of the Contract and the Purchaser shall only be entitled to rescind the Contract in the event that he is no longer interested in the delivery of the delayed goods or the circumstances giving rise to such delay persist for more than six weeks.

5. In the event of delay in the delivery of goods under the Contract for which we are liable, the Purchaser shall be entitled to claim liquidated damages for delay in the amount of 0,5 % of the price of the delayed goods for each full week of delay subject to a maximum of 5 % of said price always provided that the Purchaser proves that it has suffered loss or damage by reason of such delay. The Purchaser shall not be entitled to claim any further damages in addition to said liquidated damages in respect of the delayed performance of the Contract. Any other claims for damages by the Purchaser in respect of the delayed delivery of goods under any Contract shall be governed by the provisions of Section VIII hereinbelow. We shall not be liable to pay damages to the Purchaser in connection with any delay in the delivery of goods for which we are not responsible.

6. We shall be entitled to make partial deliveries under the Contract always provided that the Purchaser can reasonably be expected to accept such deliveries.

VII Liability for Defects
1. The Purchaser shall notify us forthwith, but no later than ten days following the delivery of the goods concerned, in writing of any defect in goods supplied by us and any goods incorrectly supplied by us. The Purchaser shall notify us of any latent defects in goods supplied by us without delay following the detection thereof.

2. The Purchaser shall not entitled to make any claims against us in connection with minor, technically unavoidable deviations in the quality, colour, width, weight, equipment or design of goods supplied by us or customary deviations in such goods except where we have agreed in writing to supply goods in accordance with samples.

3. Our liability to the Purchaser in connection with defects in goods supplied by us shall be governed by the following provisions:

a) Claims made by the Purchaser shall be forfeited unless made within twelve months of the delivery of the goods concerned, except where longer periods apply under Section 438, Para 1, No. 2 of the German Civil Code (buildings and goods for buildings) and Section 479, Para. 2 of the German Civil Code (right of recourse).

b) In the event of claims by the Purchaser in connection with defects in goods supplied by us, we shall be entitled to repair or replace the goods concerned, at our option and the Purchaser shall grant us a reasonable period of time and reasonable opportunity for such repair or replacement. Should the Purchaser fail to grant us such reasonable period of time or opportunity, we shall be released from our obligation to repair or replace the defective goods concerned and from any further obligations in connection with such defective goods.

c) In accordance with the applicable statutory provisions, in the event that we fail to remedy any defect in goods supplied by us within a reasonable period of time granted by the Purchaser or attempts by us to repair or replace defective goods finally fail or become impossible, the Purchaser shall be entitled, at the option of the Purchaser, to rescind the Contract for the goods concerned or to claim abatement (reduction) of the purchase price agreed for the goods concerned. In the event that attempts to repair or replace defective goods fail and the defects in such goods are minor, the Purchaser shall only be entitled to abate the price payable for the goods concerned. The Purchaser shall not have any warranty rights or remedies other than those provided for hereinabove or in Sections VIII.2 and VIII.3 hereinbelow with respect to defects in goods supplied by us.

d) Our warranty obligations shall not cover any defects caused by circumstances within the sphere of influence of the Purchaser including without limitation normal wear and tear, unsuitable or improper use of the goods supplied by us, improper installation or commissioning by the Purchaser or third parties, always provided that we are not responsible for such work, negligent or improper handling of goods, defects in goods supplied by us caused by thermal, chemical, electrochemical, electrical or other external influences following the transfer of risks in connection with said goods to the Purchaser where such influences are not provided for in the Contract. We shall also be released from our warranty obligations with respect to any defects in goods supplied by us in the event that any modifications or repairs to such goods have been carried out by the Purchaser or third parties without our written permission and such modifications or repairs have or are presumed to have given rise to such defects.

e) We shall also be under no warranty obligations whatsoever with respect to any public statements including without limitation statements in advertising, concerning any properties of the goods supplied by us.

VIII. Liability
1. In the event that the goods supplied by us under any Contract cannot be used by the Purchaser in accordance with said Contract by reason of our wilful act or omission or negligence, our failure to in form or advise the Purchaser properly or our breach of provisions of the Contract, the provisions of Section VII hereinabove and Paragraphs 2 and 3 of this Section VIII shall apply to the exclusion of any other remedies of the Purchaser.

2. With the exception of damage to the goods supplied under any Contract themselves, our liability for any death, personal injury or damage to health shall be limited to such instances as are caused by the wilful or negligent breach by us or any of our servants, agents or employees of any of our obligations. Our liability for other loss or damage shall be limited to loss or damage caused by the wilful or grossly negligent breach by us or any of our servants, agents or employees of any of our obligations. We shall also be liable in cases where our liability is founded on compulsory provisions of the applicable law in accordance with the content and scope of said provisions for loss or damage, including without limitation personal injury and damage to privately used property in accordance with the Product Liability Act. Any liability of ourselves other then that provided for herein is hereby excluded, subject to the proviso stated in Paragraph 3 of this Section VIII.

3. Our liability in connection with the negligent breach of major obligations and essential secondary obligations (material obligations) under the Contract shall be limited to compensation for loss or damage which was typical in connection with the Contract and was reasonably foreseeable as of the conclusion of the Contract.

IX. Applicable Law, Venue for Disputes
In the event that the Purchaser is registered as a company or is subject to obligatory entry in the commercial register under the Handelsgesetzbuch (German Commercial Code) or is a public body or institution, Ulm shall be the place of performance of the Contract. In the event that the Purchaser is registered as a company or is subject to obligatory entry in the commercial register under the Handelsgesetzbuch (German Commercial Code) or is a public body or institution, the sole venue for any disputes arising out of or in connection with the Contract, including disputes concerning cheques and bills of exchange shall be Ulm or Mainz at our option.

X. Applicable Law
The Contract shall be governed by and construed and interpreted in accordance with the law of the Federal Republic of Germany.

XI. Data Protection
In accordance with the provisions of the Federal Data Protection Act, we wish to inform Purchasers that our accounting data are processed on a computer system and that the data which we receive as a result of our business relations with the Purchaser are also stored on this system.