GENERAL TERMS AND CONDITIONS

General Terms and Conditions of Delivery and Payment

I. Scope

Our Terms and Conditions of Delivery and Payment – which Buyer accepts when placing the order – apply exclusively. This also applies to future transactions even if there is no express reference to the Terms and Conditions of Delivery and Payment but Buyer was furnished with such Terms and Conditions together with the order that we acknowledged. Our Terms and Conditions of Delivery and Payment apply even if the order is placed indicating terms and conditions deviating from our Terms and Conditions. I.e. deviations shall not be effective unless expressly acknowledged by us in writing.

II. Offers and orders, cancellation

1. Our offers are subject to confirmation and – like information in catalogues, pictures and descriptions are non-binding; in particular, they do not result in any quality and durability guaranties.

2. The customer shall be bound to his order for 4 weeks. Upon delivery the customer's order shall be deemed accepted. Order confirmations are not provided unless specifically requested by the custom-er. Notwithstanding the above, any and all acknowledgments and agreements, in particular undertak-ings by our employees, agents or other sub-agents, shall not be effective unless they are in writing.

3. In the event that the customer requests adjustments or drafts upon receipt of our offer, such adjustments and drafts shall only be free of charge if, and only if, an effective agreement is executed and remains effective. On principles, samples are invoiced.

4. If after execution of the agreement we learn about circumstances relating to the customer that might endanger our claims, we are entitled to cancel the agreement after expiration of an appropriate period of notice during which the customer failed to remedy the circumstances. Such endangerment includes in particular bringing forward previous claims in court proceedings.

5. The customer does not have the right to cancel the agreement except for reasons set forth in legal regulations and shall bear expenses at a flat-rate of 100 EUR that we incur as a result of unjustified returns. This applies unless the customer provides evidence that we did not incur any or a significant-ly lower damage as a result of such return.

6. The customer warrants that the documents provided to us for the purpose of the order, in particular sketches for the performance of the service, are free from third-party industrial property rights and li-censes. We are not obligated to verify whether the offers provided or the performance of the orders based on the documents provided violate any third-party rights. The customer shall indemnify us from such liability under 4. and bear the costs of any legal defense including advance payments incurred. The provisions in VII. shall remain unaffected.

III. Prices, terms of payment, retention, offsetting

1. Our prices are net prices in Euro ex warehouse and exclude any freight expenses, shipping and packing costs, insurance and statutory VAT (sales tax) applicable at the invoice date.

2. The prices in our pricelist applicable at the order date apply. In the event that the customer requests express shipment he shall bear the additional expenses incurred. 

3. Prices are subject to increase based on any event or cause that impacts the price or availability of materials or supplies, including, without limitation, foreign exchange rates, increases in raw material costs, inflation and increases in wages and other production and supply costs. This also applies to goods that have already been confirmed and have not yet been delivered.

4. Our trade receivables are due payable within 10 days (2% discount) or within 30 days of the delivery date (due date) net without discount. We shall have the right to assign our claims resulting from business relationships. 

5. Payments with full discharge of debtor shall exclusively effected to our bank account details stated in our invoice. Our travelling salesmen and representatives may only accept payments if they present a written power of collection issued by us.

6. Arrears of payment are deemed to have occurred without the need for a reminder or other prerequi-sites, at the latest 30 days following due of invoice. If upon payment there are additional outstanding claims the payment shall – irrespective of any repayment agreement with the customer – be offset in accordance with Sec. 366 para. 2 BGB [German Civil Code]. Without any express agreement, checks and bills of exchange shall not be deemed fulfillment of our claims for payment. The customer shall bear any bank charges, discounts allowable and collection charges. Claims for payments shall not be deemed satisfied until the amounts are at our disposal. 

7. Except as stipulated in VII.2., the customer shall not have the right to offset or retention unless his counterclaims are found to be uncontested or legally enforceable. The supplier's right of retention shall be limited to the claims resulting from the respective agreement. Any assignment of claims against us shall be excluded.

8. If Sec. 321 BGB [German Civil Code] is applicable any outstanding amounts shall be due payable immediately, any respites granted are revoked accordingly. 

IV. Delivery, delivery dates

1. Any delivery period guaranteed in writing shall commence upon sending of the order confirmation. The delivery deadline shall be deemed met if by the expiration of the period the customer was notified about the ready for shipment status or the merchandise has left the place of dispatch. It shall be ex-tended by the period required for the clarification of any technical details, presentation of documents, permits, release documents and materials to be provided by the customer and receipt of any agreed-upon downpayment. This does also apply in case of labor conflicts such as strikes and lockouts as well as occurrence of unforeseeable obstacles beyond our control, e.g. stoppage, delays in the supply of essential material, to the extent that evidence is provided that such obstacles materially affect the delivery of the goods. In such case the delivery period is extended by the duration of such measures and obstacles. This does also apply, if the circumstances occur with any sub-contractor. We shall not be held responsible for the aforementioned circumstances, even if they occur during a default already caused by us. The customer shall be notified without any delay about the beginning and the end of such events.

2. Partial deliveries within the indicated delivery period are permitted to the extent that such deliveries do not result in any adverse effects on the use of the merchandise.

3. Orders under blanket agreement have to be accepted with 6 months. After expiration of this period we shall have the right to request payment of the purchase price after notifying the customer about the ready for shipment status. 

4. We reserve the right of adjustments of the construction, shape or other modifications due to en-hanced technology or statutory requirements to the extent that the merchandise is not materially modified and the adjustments can be reasonable expected to be accepted by the customer.

5. For production reasons, we reserve the right of delivery of larger or smaller quantities not exceeding 10 %, without prior notification of the customer.

6. We choose the type of shipment at our own discretion.

V. Acceptance and transfer of risks

1. The customer agrees to collect and inspect the goods within a period of ten days of receipt of the ready for shipment status notification or other notifications regarding the completion unless he is – without being at fault – temporarily unable to do so. Unless otherwise agreed upon, the risks are transferred to the customer upon collection of the goods at our plant, however, no later than after leaving our premises.

2. If the customer intentionally or grossly negligently fails to collect the goods within ten days of receipt of the ready for shipment notification, we shall have the right to cancel the agreement and claim damages at a flat-rate of 1 % of the invoice amount for each month or part thereof, after granting an additional period of ten days for collection. We reserve the right to provide evidence that larger dam-age was incurred, while the customer has the right to provide evidence that no or smaller damage was incurred. The granting of an additional period for collection shall not be required where the cus-tomer seriously or finally refuses to collect the goods or is apparently unable to pay the purchase price during this period.

3. In the event that the customer states that he will not collect the goods, the risk of accidental loss or accidental deterioration of the goods is transferred to the customer at the time of refusal, however, no later than set forth by the applicable legal regulations. In such case, we shall have the right to claim damages at 20 % of the invoice amount. We reserve the right to provide evidence that larger damage was incurred, while the customer has the right to provide evidence that no or smaller damage was in-curred.

4. The goods shall be shipped upon the customer's request and at the customer's expense and risk.

VI. Retention of title of ownership

1. We shall remain the owner of the delivered goods until payment of the purchase price in full as well as until payment for all previous and future deliveries during the business relationship – in-cluding any subsidiary claims – (or until payment or redemption of any check or bill of exchange). Until then, the customer shall not be authorized to assign the merchandise or pledge it as securi-ty to third parties.

2. However, the customer shall have the right to sell the goods or the products manufactured by means of the goods in the ordinary course of a sales transaction. In case of resale or processing the buyer of the goods owned by the seller due to the yet outstanding payment shall assign to us the related receivables or substitutions. We accept assignment at this time already.

3. In the event that the goods are processed or combined with other products and such processing or combination also includes parts of which we do not have title of ownership, we shall be grant-ed co-ownership in the newly produced good.

4. Until proper satisfaction of his payment obligations, the customer shall be authorized to collect such claims and receivables at our account. However, we shall have the right to notify the third party buyer – who shall be identified upon our request – about the transfer and provide instruc-tions as soon as the risk of a loss of the customer's net assets occurs or he is unable to proper-ly meet his payment obligations. In this respect the customer is obligated to provide all infor-mation required for collection and related documents, and notify the debtor about the assignment. The customer shall notify us without any delay about third party claims for goods delivered sub-ject to retention of title or the assigned receivables.

5. We shall release the merchandise to the extent that the realizable value of the goods subject to retention of title exceeds 120 % secured receivable.

6. Furthermore, we shall have the right to insure goods that are subject to retention of title and that are worth more than 5,000 EUR at the customer's expense against theft, damage, fire, water or other damage unless the customer provides evidence that such insurance exists already.

7. In case of occurrence of circumstances defined in Sec. 321 BGB [German Civil Code] we shall have the right to prohibit resale of the goods that are subject to retention of title and request that the goods be returned at the customer's expense.

8. In case of a suspension of payment, initiation or opening of insolvency proceedings, in-court or out-of-court settlement proceedings, contested checks or bills of exchange or pledge the right of resale or processing of the goods is suspended until settlement of outstanding balances. Pay-ments in respect to assigned outstanding balances shall be collected immediately on a special account. In such case goods are only returned for security reasons; such procedure is not deemed a cancellation of the agreement even if subsequent partial payments are made. In the event that the customer is at default of payment we shall have the right to cancel the agreement without assessment and irrespective of the prerequisites set forth in Sec. 323 para. 2 BGB [German Civil Code].

VII. Confidentiality

1. The customer shall keep any and all information and documents relating to us that are marked as "confidential" or are otherwise apparent business or trade secrets beyond the expiration or termi-nation of the agreement; the customer shall not record or copy, use or disclose such information or documents to any third party unless required in order to achieve the purpose of the agreement. This also applies to electronically exchanged data. The customer shall undertake that his em-ployees or agents become subject to such obligation as well.

2. Upon our request, the documents and information as well as any other provided material shall be returned in full and without any delay; if such documents or information are stored on data medi-ums the customer shall warrant that any such data is deleted irreversibly. Any right to retain such information shall at all event be excluded.

3. We reserve all rights relating to such documents and information, in particular copyrights and the right to file for registration of industrial property rights in our name.

4. In each case of violation of the obligations defined above under VII.1. – 3. the customer shall have to pay damages in the amount of 10,000 EUR, with us reserving the right to provide evi-dence that larger damage was incurred and the customer having the right to provide evidence that no or smaller damage was incurred.

VIII. Warranty and liability

1. Our warranty shall elapse one year of transfer of risks. Delivered goods shall be deemed approved if the customer does not notify us about any apparent defects within 10 working days or about other defects within one year. Sec. 377 HGB [German Commercial Code] shall remain unaffected. Warranty shall be excluded for used goods.

2. In case of complaints the customer shall give us the opportunity to verify the defects, in particu-lar upon our request provide us with the goods claimed to be defective or samples thereof. If the timely complain of the customer is justified, firstly he shall only have the right to claim remedy of the defect, taking into account his reasonable interests. If further attempts to remedy the defect are deemed unreasonable for the customer, he shall have the right to claim cancellation of the agreement or reduction of the consideration. Our warranty shall not result in the right to claim damages.

3. In the event that our services result in the establishment, maintenance or modification of a building (construction services) cancellation of the agreement shall be excluded. If only part of the delivered good is defective, our warranty shall be limited to the defective part of the delivery unless such limitation is not possible or unreasonable for the customer.

4. If any good delivered by the customer causes damage at a third party, the customer shall indemnify us to the extent to which he is legally or by contract responsible for such damage, even if such claims are no longer directly enforceable against the customer due to expiration of statute of limitation. Such damage also includes all expenses relating to criminal investigations and required recalls.

5. Our liability shall be excluded unless life, body or health were harmed. In the event that we or our sub-agents negligently violate our obligations we shall be held liable for damage only to the extent that it is typical of the relating agreement and foreseeable. However, our liability shall not be lim-ited when and to the extent that the damage is covered by our corporate liability or other insur-ance. The liability for cardinal obligations shall be unlimited.

IX. Duration and termination

Permanent agreements shall comments upon execution and remain in effect for a period of one year unless otherwise agreed upon. If one party does not notify the other party at least two months prior to the expiration of the agreement in writing about the termination, such agreement shall be extended by another year without a special declaration being required. In such cases we shall have the right to terminate the agreement, giving 3-month notice.

Any right to terminate the agreement for cause without giving notice shall be reserved. Among other things, such cause for us includes the filing of a petition requesting opening of insolvency proceeds, as well as the customer's default in payment of more than one month.

X. Place of performance, jurisdiction, applicable law

1. The place of performance of all deliveries from STELLA Keramik GmbH shall be Schwarzen-bach/Saale, from Schmirgelwerk Chemnitz shall be Chemnitz and from Capillar Schleifkoerper-werk shall be Crosta near Bautzen. 

2. Jurisdiction may be in our choice Hof/Saale, Chemnitz or Bautzen.

3. These Terms and Conditions shall be exclusively governed by the laws of Germany, excluding the laws on international sale of movable goods, even if the customer's registered office is situ-ated outside Germany.

XI. Other provisions

1. The customer shall not transfer any rights and obligations resulting from the agreement entered into with us without our prior written consent. We shall have the right to assign our claims result-ing from our business relationship.

2. If any of the provisions shall be or become void or invalid, the validity of the remaining provisions shall remain unaffected. The parties are obliged to replace the ineffective/unfeasible provision from the start of the invalidity/unfeasibility by a provision which is as close as possible in com-mercial terms.

3. We shall have the right to store any data obtained in connection with the agreement in accord-ance with GSDVO and BDSG [German Federal Law on Data Protection].