General Sales and Delivery Conditions for the Jutta Ohst german-cryo® GmbH

  1. General Information

1.1 The General sales and Delivery Conditions outlined below shall apply for all deliveries and other services provided by german-cryo (“Supplier"). Our customers’ General Terms and Conditions shall not apply, unless we explicitly agree in writing via a letter or fax.

1.2 In the event certain conditions outlined in these Sales and Delivery Conditions are deemed invalid, the validity of the remaining conditions in these Sales and Delivery Conditions shall not be affected. The buyer and supplier shall replace the invalid conditions with new legally authorized conditions which are as close as possible to the intended legal and economic purpose of the invalid condition.

1.3 The buyer shall authorize the supplier to process his personal data within the scope of the applicable Privacy Act Conditions for implementing to supplier contract and forward the data to the individuals involved with the implementation of the supplier contract without notice.
 

  1. Offers, Service Scope and Contract Execution

2.1 All offers are non-committal

2.2 The supplier contract shall become binding only after the supplier has provided a written order confirmation (via letter, fax or e-mail). The supplier’s order confirmation is valid in absence of an original signature as well.

Subsequent amendments to the supplier contract require the supplier’s written confirmation via letter or fax. In the event the delivery had to take place in absence of a previous order confirmation, the supplier contract shall become effective at the time of delivery. Contracts becoming effective upon order confirmation cannot be cancelled or annulled without the prior consent of german-cryo.

2.3 The order confirmation is relevant exclusively for the scope of the contractually owed services; information regarding the product characteristics are of no significance. The supplier reserves the right to make changes to the construction, the selected materials, the specifications and construction type, including after submitting an order confirmation insofar these changes do not contradict the order confirmation.

2.4 The documents on which the order confirmation is based, such as images, drawings, measurement and weight information are non-committal until they have been confirmed in writing.

2.5 If the buyer’s economic situation should significantly change from the conditions present prior to providing the order confirmation or if facts placing reasonable doubts on the buyer’s solvency should become apparent, the supplier is entitled to deny delivery until the byer has rendered the applicable compensation or provided an adequate security.

2.6 Consistent non-compliance with the payment terms or circumstances justifying serious doubts with regard to the buyer’s credit standing shall result in immediate payment of the supplier’s claims. In addition the supplier is entitled to demand advance payment for all pending shipments and withdraw from the contract after an appropriate extension term.
 

  1. Prices and Payment Terms

3.1 Due to the absence of an agreement, prices are valid @ factory, loading at the facility, but without packaging and other shipping and transport expenses. The packaging is billed to the buyer’s and will not be accepted for return. Value added tax in the applicable statutory amount will be added to the price.

3.2 In the event of significant changes to the production costs which cannot be predetermined by the supplier, the supplier reserves the right to negotiate a price deviating from the price agreed upon in order confirmation with the buyer.

3.3 If the buyer should request changes after the order confirmation has been submitted, he may be billed for the potential additional costs incurred.

3.4 Payments must be rendered without deductions within two week of the invoice date.

3.5 In the event of payment arrears, interest in the amount of 8% p.a. effective the due date shall apply. The default interest rate is 8% above the basic interest rate. The supplier’s right to additional claims due to culpable infringement of the payment term shall remain unaffected.

3.6 Payments rendered by bill of exchange or check shall be considered as paid after it has been cleared by the bank. Bank, discounting and other expenses shall be borne by the buyer.

3.7 The buyer is not entitled to retention rights. Offsetting with counter- claims is only permissible to the extent the supplier agrees or if legally determined.
 

  1. Delivery Schedule, Acceptance and Shipment

4.1 The Supplier strives to comply with the agreed upon delivery schedule. The delivery time is scheduled at best estimation but without liability, unless a fixed just-in time delivery schedule has been agreed upon in the order confirmation.

4.2 The delivery term is determined and provided with the order confirmation upon clarification of all technical and business details, as well as the availability of all required permits. The delivery term shall be adjusted accordingly if the buyer does not comply with the relevant contractual and payment obligations outlined in his contract. The delivery term is in compliance if the buyer has been notified that the shipment is ready for delivery within the set delivery term. Potential changes in the implementation of the delivery object to be shipped will disrupt and delay the delivery term accordingly.

4.3 The occurrence of unforeseen events shall entitle the supplier to delay the shipment for the timeframe of the occurrence and an adequate start-up period. An unforeseeable occurrence is a circumstance the supplier is not responsible for after exercising due diligence, such as war,  currency, trade policy or other official measures, civil commotion, natural disasters, fire, strikes, lockouts, non-delivery of pre-cursor materials without fault, traffic obstructions and operational disruptions and other cases of higher powers,

that could inhibit the fulfillment of the supplier contract and/or render it significantly more difficult or even impossible. In in these cases the supplier is entitled to withdraw from the contract without being subjected to damage claims.  The buyer is entitled to request the supplier to issue a declaration whether he will withdraw or deliver within an appropriate timeframe. If the supplier does not provide a declaration, the buyer can withdraw from the contract. The buyer is not entitled to reject partial shipments and services.

4.4 If a delay in delivery should occur for other reasons, the buyer must grant the supplier an appropriate deadline extension in writing. If the delivery object is not shipped within this extended period, the buyer is entitled to withdraw for the parts which have not been sent or scheduled for delivery upon expiration of the extended deadline. The buyer may only withdraw from the entire contract if the partial services rendered are of no benefit to him.

4.5 Damages claimed by the buyer are excluded in all cases of delayed deliveries and services. This shall not apply for cases of mandatory liability due to intent or gross negligence.

4.6 If a fixed acceptance period has not been agreed upon, the buyer must accept the delivery object within 8 days upon notification of completion.

4.7 If the buyer has commissioned a make-and-take order, he must recall the delivery object, or in case of multiple delivery objects, within 12 months of the order date. Paragraph 4.5 shall apply accordingly.

4.8 If the buyer does not accept the delivery object at the agreed upon date, he is liable to render the purchase price regardless. Without prejudice to relevant legal rights, the supplier is entitled to store the delivery object at the buyer’s expense and risk, or utilize the delivery object at his discretion and deliver to the buyer at his earliest convenience. The storage costs are calculated at a minimum of ½ % of the invoice amount for each month.

4.9 Shipment is @ factory and at the buyer’s expense and risk. Unless otherwise agreed upon, the shipment method and manner shall be determined by german-cryo. Transport damages, theft and other insurance coverage shall only be obtained by the supplier upon explicit request and at the buyer’s expense.
 

  1. Transfer of Risk

5.1 The risk shall be transferred to the buyer upon acceptance, on the date of rejection without reason, upon the buyer’s lack of activity after expiration of the terms outlined in previous paragraphs 4.5 and 4.6, or a potentially otherwise agreed upon acceptance period. If shipment of the delivery object to the buyer or a third party has been agreed upon, the risk is transferred to the transportation company (hauler, railway etc.). In any event, the risk shall be transferred after the delivery object has been utilized.  If the supplier should accept the return of good for reasons he is not responsible for, the buyer shall bear the risk until the goods have been received by the supplier.

6a. Cancellation

6a.1 An order can only be cancelled by sending a written notification to the seller and is subject to the seller’s cancellation costs and fees, including all costs incurred up to the cancellation date (the cancellation date is the date the seller has been notified of the cancellation), the cost of ordered materials that cannot be returned, the return and cancellation fees, as well as the processing costs for the cancellation and adequate profit.
 

6b. Restocking Charge

6b.1 If the buyer exercises his entitlement to return the goods after he has received the goods (e.g. due to an erroneous purchase), the buyer will be billed for return costs in the amount of 20% of the gross list price for the returned product. The buyer shall bear the freight costs for the delivery and the return. Returning the product after it has been used is not possible.
 

  1. Retention of Ownership

7.1 The goods shall remain the property of the supplier until all of the supplier’s entitlements have been satisfied, regardless of the statutory reasons or if payments for specifically defined entitlements have been rendered. For current accounts ownership is reserved to secure the suppliers outstanding balance.

7.2 The buyer is not authorized to assign or use the goods delivered with ownership reservation as security. In the event of garnishment or seizure as well as other third party orders, the buyer must notify the supplier immediately.

7.3 If the goods are processed or modified by the buyer, the ownership reservation shall apply to the entire new item. In the event the goods have been processed, connected or combined with other items, the supplier shall be entitled to co-ownership for the percentage corresponding to the value of his goods at the time the buyer has processed, connected or combined the products. 

The buyer is entitled to sell the goods subject to ownership reservation within the framework of proper business operation. If the buyer should sell the goods without receiving the full purchase price in advance or step by step against handing over the purchasing object, he must advise his customer to agree to the ownership reservation in accordance with these conditions. The seller shall assign his claims for payment from this sale as well as the rights of the agreed upon ownership reservation to the supplier effective immediately. He is obligated to disclose the assignment to the buyers upon the suppliers request and provide the information and documentation required by the supplier to assert his rights against the buyers.

7.4 If ownership reservation is invalid in accordance with the laws of the state  where the goods are primarily sold, the security for the suppliers claims that can be effectively agreed upon in the respective state and which is economically closest to an ownership reservation shall apply. The buyer is obligated to implement the necessary measures required for the actual or legal aspects.
 8.  Warranty

8.1 The buyer must inspect the delivered goods with reasonable diligence immediately after the goods have been received; potential deficiencies detected must be reported in writing within an exclusion period of 2 weeks. Hidden deficiencies must be reported within 2 weeks of discovery.

8.2 In the event of a justified deficiency complaint, the warranty method used is at the supplier’s discretion, for instance, repairing the delivery object, (rework) or replacing defective parts (replacement delivery). Alternatively, under consideration of the buyer’s interests, the supplier is also entitled to reimburse the sum of the decreased value.

8.3 If the supplier does not meet, or does not meet his rework or replacement obligation in a contractually sufficient way, or if the aforementioned should fail, the buyer is entitled to a reduction of compensation or, at his discretion, can withdraw from the purchasing contract.

8.4 Replacement or consumable parts, or parts intended for further processing must also be inspected by the buyer immediately and potential deficiencies must be reported immediately according to the deadlines outlined in paragraph 7.1. In case of deficiencies that could have been determined prior to installing or processing the parts, all warranty claims shall expire after processing or installing these parts.

8.5 If the buyer initiates an inspection of the goods received and reports a deficiency for which the supplier would be liable pursuant to paragraph 7.2, the buyer must bear the incurred cost if it should become apparent that a deficiency does not exist.

8.6 Other, or further entitlements of the buyer as a result of deficiencies, including damage claims for subsequent deficiency damages are excluded. In the event of a warranty violation which must be explicitly confirmed and defined as such in the order confirmation, damages may only be claimed to the extent the buyer should be protected against such damages by the warranty.

8.7 The suppliers liability shall expire if the goods delivered are disassembled by a third party or have been modified by installing third party parts and the damages incurred can be attributed to such a modification. The liability shall also expire if the buyer does not comply with the supplier’s handling instructions (operating instructions) in a proper manner.

8.8 The buyer’s entitlements from deficient goods will expire within 12 months upon startup operation, but not later than 18 month after the transfer of risk.
 

  1. General Limitation of Liability

9.1 Unless otherwise agreed upon in these Sales and Delivery Conditions, the supplier, regardless of the legal reason, shall only be liable in the event of intentional or gross negligence

9.2 If the buyer should claim personal or material damages which can be attributed to the deficiency of the item delivered in accordance with the Product Liability Act, the liability exclusion shall not apply.

9.3 The buyer’s advice, particularly with regard to the use of the delivered object are only binding to the supplier if he has issued or confirmed it in writing.
 

  1. Copyright

10.1 The supplier reserves his intellectual property right to drawings, drafts, cost estimates and other documents enclosed with his proposals and order confirmations. The buyer may use the aforementioned only for the agreed upon purpose and must refrain from reproducing or making the documents available to third parties without the supplier’s prior written consent. Upon the supplier’s request these documents and all reproductions must be returned to the supplier.
 

  1. Disposal of Goods

11.1 After servitude has been completed, the customer must properly dispose of the delivered goods in accordance with the applicable statutory regulations. The customer shall indemnify the supplier for all potential statutory return obligations, particularly from potential obligations pursuant to § 10 paragraph 2 of the Act Governing the Sale, Return and Environmentally Sound Disposal of Electrical and Electronic Equipment (ElektroG) and the corresponding entitlements of third parties.

11.2 In the event the customer should transfer the delivered goods to commercial users he must contractually obligate these commercial users to properly dispose of the delivered goods after use in accordance with the statutory regulations at their own expense and, in case of another transfer, prepare another respective contractual obligation agreement.  If the customer does not comply with the aforementioned he is obligated to accept the return of the delivered goods after use and properly dispose of the goods in accordance with the applicable legal regulations.

11.3 The supplier’s entitlement to request the customer’s take over and/or exemption from obligations outlined in paragraph 10 shall expire no earlier than 2 years after the final conclusive use of the delivered goods.
 

 

  1. Place of Fulfillment, Legal Venue and Applicable Law

12.1 Place of fulfillment for the supplier’s shipments is the respective shipping plant.

12.2 The legal venue to be selected by the supplier is his company headquarters or the buyer’s headquarters, including for certification, bill of exchange and check processes. 

12.3 The German Law in the manner it applies to all national legal relations shall apply to the legal relations between the supplier and the buyer as well. The treaty of the United Nations from 04/11/1980 regarding contracts for international sale of goods is excluded.