1. Scope of Application
1.1. These Terms and Conditions shall apply to contracts for the supply of standard products (hereinafter Products) manufactured by NCTE AG (hereinafter NCTE). General terms and conditions of the Customer shall not apply, even in the absence of an express contradiction on the part of NCTE.
1.2. These Terms and Conditions shall apply to business activities conducted with companies.
2. Quotations, Product Information
2.1. All quotations shall be valid for a period of four weeks only, unless stated otherwise in the quotation itself.
2.2. All information and data contained in general product documentation and price lists, whether in electronic or other form, or presented in the course of contractual negotiations, shall not be binding unless expressly designated as such under the contract.
Orders shall not be deemed accepted until confirmed in writing by NCTE. The wording of the letter of confirmation shall constitute the substance of the contract. The Customer shall therefore be obliged to examine the letter of confirmation in full and notify NCTE of any inconsistencies without delay. Ancillary agreements and amendments must be confirmed in writing by NCTE.
4. Delivery Dates, Default
4.1. If no exact delivery date is fixed by the parties, but instead a period specified within which delivery shall take place, such period shall begin as soon as the contract is concluded, all official formalities completed, any payments due upon conclusion of the contract made, any and all securities furnished as agreed and any other preconditions duly fulfilled.
4.2. The delivery period may be extended for a reasonable length of time if a delay is due to circumstances arising from industrial disputes, e.g. strikes or lockouts, or other unforeseen occurrences beyond the control of NCTE, insofar as it can be proved that such hindrances have a considerable influence on completion or delivery of the Products, or if such circumstances are due to acts or omissions on the part of the Customer or of suppliers of NCTE.
5. Delivery, Transfer of Risk
5.1. Any and all terms of delivery shall be construed in accordance with the INCOTerms in force at the time of concluding the contract. If no terms of delivery are expressly agreed, delivery shall be made EXW (ex works, INCOTerms 2000).
5.2. If, in the event of delivery EXW, NCTE undertakes, at the request of the Customer, to despatch the Product to its destination, risk shall transfer to the Customer no later than upon handover of the Product to the first carrier. If delivery to the first carrier is delayed for reasons attributable to the Customer, risk shall transfer to the Customer on the date on which the Products are ready for delivery. At the request of the Customer, NCTE shall be obliged to insure the Products at the Customer´s expense.
5.3. Unless otherwise agreed, partial deliveries shall be permitted insofar as the Customer may reasonably be expected to take receipt of the same.
6. Prices, Payment
6.1. All prices for Products to be delivered by NCTE shall be quoted EXW, exclusive of freight or postage, packaging, insurance and the value-added tax prevailing from time to time. NCTE shall be entitled to increase any prices already agreed without consulting the Customer, in the event and to the extent that the prices of intermediate products or labour costs rise, provided that NCTE Products are to be delivered more than four months after conclusion of the contract, or the Customer is under a continuous obligation to NCTE.
6.2. Unless otherwise agreed, the purchase price shall be payable within 30 days of receipt of invoice or an equivalent request for payment, without any deductions and free of charges, either in euros or in another currency previously approved by NCTE.
6.3. In the event of belated payment, interest shall be calculated at a rate of 8% above the statutory base lending rate prevailing on the due date. This shall be without prejudice to claims for any further damages incurred as a result of default. In cases of late payment, NCTE may discontinue performance under the contract.
6.4. Payments may neither be withheld nor offset against amounts due to NCTE, unless the counterclaims or opposing rights of the Customer are undisputed or established as legally valid.
7. Retention of Title
7.1. NCTE shall retain title to the Product pending receipt of full payment for amounts due under the delivery contract. The Customer may neither pledge nor assign by way of security the goods subject to retention of title. The Customer may dispose of such goods in the ordinary course of business at its usual conditions and subject to the proviso that the Customer receives payment from its buyer or itself retains title to the goods until such buyer settles all payment obligations in full. The Customer shall notify NCTE without delay if the Product becomes the object of seizure, attachment or other third-party dispositions.
7.2. If the Customer processes the Product to produce a new item, such processing shall be carried out on behalf of NCTE. The Customer shall not acquire title to the Product by way of processing the same. Should the Product be processed, mixed or reformed together with products which do not belong to NCTE, the latter shall acquire a joint title to the new item which shall be equivalent to the invoice value of the Product delivered by itself in proportion to the invoice value of the other products at the time of processing.
7.3. By way of security, the Customer hereby assigns to NCTE any and all future receivables accruing from resale of goods subject to retention of title, unless the receivables accruing from such resale are assigned to a third party by way of non-recourse factoring and the amount of the purchase price payable by the factoring bank upon sale of the receivables (factoring) is assigned to NCTE. Should the Customer dispose of goods subject to retention of title together with other goods, without agreeing a separate price for the goods belonging to NCTE, the receivables assigned to NCTE from such resale shall not exceed the gross invoice value of its own goods. If goods to which NCTE holds joint a title as a result of reworking or processing, combination or mixing (see above) are sold, the receivables assigned shall be equivalent to the value of its joint share in proportion to the remaining share of the goods.
7.4. Unless revoked by NCTE, the Customer shall be entitled to collect on behalf of NCTE amounts receivable from the resale of goods subject to retention of title. Any amounts collected shall be transferred to NCTE without delay.
7.5. If the Customer fails to meet its obligations arising out of the present Terms and Conditions or out of other contracts with NCTE, or if circumstances become known which materially diminish its creditworthiness,
– NCTE may prohibit the Customer from reselling, reworking or processing any further goods subject to retention of title, or mixing or combining such goods with other goods;
– NCTE may revoke the Customer´s collection right with immediate effect;
– the Customer shall, at the request of NCTE, advise the names of debtors owing amounts assigned to NCTE, so that the latter may disclose such assignment and collect any receivables due.
8. Proprietary Rights, Intellectual Property
8.1. The Customer hereby acknowledges that the Products are the sole intellectual property of NCTE and shall indemnify NCTE against all third-party claims alleging that the Customer´s designs or samples, or the processing of NCTE Products as part of its own products constitute an infringement of intellectual property.
9.1. The Customer shall examine the Products for possible defects immediately following delivery. Obvious defects shall be notified to NCTE in writing within five working days, hidden defects within five working days of discovery.
9.2. A guarantee shall be provided for defective products in accordance with the statutory requirements, subject however to the following conditions:
– the guarantee period shall amount to one year from the date of delivery;
– the Customer shall on no account be entitled to repair or attempt to repair the Product or arrange for repair by third parties;
– unless otherwise agreed, the Customer shall bear all additional repair and transport costs incurred by NCTE in the event that the Product is moved to a location other than that contractually agreed or, if no location is agreed, to a location other than the place of delivery;
– as soon as the Product is processed or incorporated into another item, no guarantee claims shall be recognised in the case of defects which could reasonably have been identified by the Customer prior to incorporation or processing of the Product;
– no guarantee shall be provided by NCTE in relation to a specific life span for its Products;
– the guarantee shall cover neither natural wear and tear nor damages incurred following the transfer of risk as a result of incorrect or negligent handling or as a result of failing to use the Product in accordance with the specifications or the contract, including, but not limited to interference with the Product or modifications thereto on the part of the Customer or third parties;
– no express guarantee shall be provided in the case of defects which do not, or only negligibly impair the value or the serviceability of the Product;
– the Customer shall have no right of recourse against NCTE unless claims brought against the Customer by its buyer, namely a private end-user, are justified, such claims being however limited to the statutory amounts and excluding ex gratia payments not agreed with NCTE; a right of recourse shall also depend on whether the Customer has complied with its obligations, in particular with the provisions relating to notification of defects.
10.1. NCTE shall not be liable for claims on the part of the Customer relating to damages or reimbursement of expenses on any legal grounds whatsoever, including claims arising from tortious acts or for compensation for damages or consequential loss due to defects, and claims arising from negligent breach of secondary contractual obligations or loss of profit, unless NCTE, its senior executives or its agents are guilty of acting with intent or gross negligence, or of causing loss of life, bodily injury or damage to health, or in the event of liability due to breach of material contractual obligations or mandatory liability under the German Product Liability Act.
10.2. In the event of breach of material contractual obligations which are attributable neither to intent or gross negligence nor involve loss of life, bodily harm, damage to health or breach of a guarantee of quality, liability shall be limited to reimbursement of typical and foreseeable damages.
11. Applicable Law, Place of Jurisdiction
11.1. These General Terms and Conditions shall be governed exclusively by the law of the Federal Republic of Germany with the exclusion of the legal provisions for conflicting choice of law and the Convention on the International Sale of Goods.
11.2. To the extent permissible by law, it is hereby agreed that the exclusive place of jurisdiction shall be Munich (First Munich Regional Court). NCTE shall however also be entitled to bring an action at the principal place of business of the Customer.
12. General Provisions
12.1. Any agreements deviating from the provisions of these General Terms and Conditions shall be drawn up in writing. This shall also apply to waiver of such written form requirement.
12.2. The invalidity of any individual provision of these General Terms and Conditions shall be without prejudice to the validity of the remaining provisions. Should any provision be or become invalid, the parties hereto shall substitute such invalid provision for a valid provision which shall reflect as closely as possible the economic and legal purpose of the invalid provision.
12.3. All headings are for purposes of clarification only and do not form part of the agreement.
12.4. In the event of inconsistencies between the German and the English version of these General Terms and Conditions, the German version shall prevail.
Date: September 2013