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Sales and Delivery Conditions of Extra Flugzeugproduktions- und Vertriebs GmbH
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§ 1 Scope of Contract
1.1 These Sales and Delivery Conditions shall govern any and all quotations, offers, contractual relations and deliveries between Extra Flugzeugproduktions- und Vertriebs GmbH (�Seller�) and the �Purchaser�. Differing conditions of the Purchaser, which are not accepted explicitly in writing, are not binding, even if the Seller executes a Contract without contradicting such conditions expressly.
1.2 Consumers in the meaning of these Sales and Delivery Conditions are natural persons, entering into a business relation with the Seller for a purpose not attributable to their commercial or autonomous professional activity. Entrepreneurs in the meaning of these Sales and Delivery Conditions are any natural persons or legal entities or legal partnerships having legal capacity entering into business relations with the Seller in the exercise of their commercial or autonomous professional activity as well as legal persons under public law or a special fund under public law. Purchaser in the meaning of these Sales and Delivery Conditions are both consumers as well as entrepreneurs.
§ 2 Offer and Placing of an Order
2.1 Quotations of the Seller are always non-binding and subject to confirmation. The Contract comes into effect only if the Seller confirms his acceptance of the order in writing or if the delivery is carried out. For the extent of the delivery the written confirmation of the order is decisive. All contractual terms are to be laid down in writing; this applies also to supplements, alterations and sub-agreements. The right to correct errors of offers, of confirmations of orders, and of invoices is reserved.
2.2 Written notices of the Seller shall be deemed to having been received by the Purchaser after the normal transit time of the mail if they have been dispatched to the postal address, fax-number or Email-address of the Purchaser known to the Seller last and if the Seller can deliver proof of that fact. This shall not apply to declarations of material importance, in particular declarations of termination, revocations or the granting of periods of grace.
2.3 In the course of the business relation with the Purchaser, the Seller will store the resulting personal data as far as this is necessary for keeping up the business relation and for the
consummation of the Contract.
§ 3 Price Terms
The prices quoted in price lists and catalogues do not include packaging and VAT, unless otherwise agreed upon. In case that the delivery shall be performed not earlier than after four months after the conclusion of the Contract, the Seller reserves the right to adequately increase the purchase price in case that the circumstances given at the moment of the conclusion of the Contract and decisive for the determination of the purchase price, in particular costs for material, wages, transport and public taxes and duties have changed to a non-negligible extent.
§ 4 Conditions of Payment, Default, Set-Off
4.1 All invoices are immediately payable without deductions at the date of issuance (due date). As of the 30est day after the due date the Seller shall charge default interest of 8 percentage points above the current basis interest of the European Central Bank, if the Purchaser is an Entrepreneur. As of the 30est day after the due date the Seller shall charge default interest of 5 percentage points above the current basis interest of the European Central Bank if the Purchaser is a Consumer. The Seller reserves the right to prove additional damages in interest.
4.2 Payment orders and cheques are accepted only according to special agreement and only on account of payment. Purchaser will be liable for all collection and discount charges.
4.3 The right of the Purchaser to determine which claims of the Purchaser shall be settled by payment is replaced by the statutory rule of terms of amortization of sec. 367 para. 1 BGB.
4.4 In case the Purchaser is in default with part payments, the Seller has the right to accelerate the maturity of the entire outstanding amount with immediate effect.
4.5 In case the Purchaser is in default of payment obligations, the Seller can terminate the Contract and claim damages instead of the performance (�Schadenersatz statt der Leistung�) after the fruitless expiry of an appropriate period of grace.
4.6 The Purchaser can only set off his claims against claims of the Seller or invoke a right of retention in case his counterclaim is recognized by declaratory judgment or is undisputed.
§ 5 Delivery and Time of Delivery
5.1 Deviations in quality, design, and color, which are customary in the trade and usual with respect to the material, are reserved. Changes by the Seller in construction and form, which are not customary in the trade, are also legitimate, unless the change or deviation is not tolerable for the Purchaser. All information, pictures, drafts, models, prospects, technical data and catalogues or other technical data as given in our prospects, catalogues, advertisements and price lists or in the information attached to an offer are non-binding. They are only supposed to give a mere description and are only intended to give an adequate idea of the goods described therein. The afore-said information will only become part of the Contract, if and insofar as they are expressly confirmed by the Seller in writing is binding.
5.2 Delivery dates or terms of delivery have to be stated in writing. In case they are supposed to be binding, this has also to be agreed upon in writing. Decisive for the punctual delivery shall be the time when the goods have been handed over to the carrier or loaded into a vehicle of the Seller or - in such cases, in which the dispatch or the delivery of the goods is delayed due to Circumstances within the responsibility of the Purchaser - the time of readiness for transport. In case of later changes in the Contract due to an initiative of the Purchaser, which have an influence on the delivery time, the term of delivery is prolonged to an appropriate extent.
5.3 The Seller�s duty to deliver always is subject to a correct and timely self-delivery, unless the Seller intentionally or negligently causes the incorrect or untimely self-delivery.
5.4 The Seller is entitled to part delivery and part performance customary in the trade at any time, unless the part delivery or part performance is unreasonable for the Purchaser. Additional
deliveries or deficiencies in the delivered quantities customary in the particular trade are permissible in the agreed amount.
5.5 The Seller shall not be liable for disturbances in the business operations of the Seller, especially the absence of managerial personnel due to illness, as well as for strikes, lockouts,lack of workers and employees - also on the part of furnishers and manufacturing companies of the Seller � for the lack of dispatching possibilities and difficulties in the acquisition of raw material as well as for cases of force majeure. In such a case, the terms of delivery shall be extended according to the duration of the impairment of performance caused by the respective circumstances. The Seller is obliged to inform the other party of the beginning and the envisaged and actual end of such obstacles as described above as soon as possible.
5.6 The Seller is not liable for such obstacles as described above even if they come into existence during a preexisting delay in performance.
5.7 If the delivery is not timely, the Purchaser has to set a grace period, which has to run for at least fourteen working days. Any and all reminders and notices regarding the setting of periods
by the Purchaser require written form in order to be valid. If the grace period set by the Purchaser expires fruitlessly without notification that the goods are ready for dispatch, the Purchaser is entitled to withdraw from the Contract or to terminate the Contract in any other way, if the Purchaser has threatened the Seller in written form with these consequences of a fruitless expiry of the set time period simultaneously with the setting of the period. The Seller�s extended liability pursuant to sec. 287 German Civil Code (BGB) shall be excluded.
5.8 If the Purchaser declares vis-à-vis the Seller before the production of the good ordered by him that he is not going to accept the good, he has to pay 40% of the purchase price as damage for lost profits and costs occurred; both the Purchaser as well as the Seller are free to claim and prove that a higher or an inferior damage has occurred.
§ 6 Retention of Title
6.1 The Seller retains the title in the respective object of delivery until complete satisfaction of any and all claims arising from the business relation with the Purchaser, including future claims arising from contracts entered into with the Purchaser simultaneously or in the future.
6.2 The Purchaser is to inform the Seller immediately of any and all threatening or already materialized seizures, in particular actions of execution of a third party with regard to the goods to which the title has been retained or with regard to the claims assigned to the Seller or with regard to other securities of the Seller. The Purchaser will disclose the Seller�s title in the good or claim and is to hand over to the seller any and all documents necessary for an intervention. This applies also to impairments of other kinds. The costs for the aforesaid are borne by the Purchaser.
6.3 If the Purchaser is an Entrepreneur, additionally, the following provisions apply:
a) The Purchaser has the right to handle or process the retained goods in the ordinary course of business. The Purchaser always undertakes an eventual handling or processing of the goods in which the title has been retained for and on behalf of the Seller as the producer under sec. 950 BGB, without any obligations resulting herefrom for the Seller. The handled or processed goods are deemed to be reserved goods as specified in § 6.1 of these Sales and Delivery Conditions. If these goods are processed, joined or mixed with other objects in which the Seller has no title, the Seller acquires the title in the new object in the proportion the invoiced value of the goods the title to which has been retained bears to the invoiced value of the other goods used at the time of the combination. If the Seller�s goods are joined, combined or mixed with other moveable assets to make one single object in a way that they cannot be separated, and if the other part is considered as the main part, the Purchaser already now transfers the coownership to the Seller, insofar as the new object and main part belongs to the Purchaser, storing it for the Seller free of charge. The rights of co-ownership of the Seller are deemed to be the object of delivery the title in which is retained in the meaning of § 6.1 of these Sales and Delivery Conditions.
b) The Purchaser is entitled to handle or process the retained goods only in the ordinary course of business, as long as he fulfils his obligations arising out of his business relation with the Seller in due time. However, he may neither pledge the goods the title in which has been retained nor transfer them by way of security. He is obliged to guarantee the rights of the Seller in case the goods, which are subject to the retention of title, are resold on credit.
c) If the Purchaser is in default of payment, the Seller has the right to demand the provisional return of the goods that are subject to the retention of title at the expense of the Purchaser, without having to terminate the Contract and without fixing a period of grace.
d) The Purchaser holds the title of ownership or co-ownership for the Seller. Apart from that, the rules with regard to the goods to which the title has been retained apply also to the goods deriving from the manufacturing, joining or mixing processes.
e) The Purchaser hereby assigns to the Seller for the latter�s security all current and future claims and rights arising from the sale of goods with regard to which the Seller holds any property rights. They shall secure the Seller to the same extent as the retained goods. The Seller herewith accepts this assignment. If the Purchaser sells the retained goods together with other goods not sold by the Seller, the claim arising from their sale shall be assigned in the proportion of the invoiced value of the other goods sold. As far as the sale of goods is concerned with respect to which the Seller has a co-ownership pursuant to § 6.3 a) of these Sales and Delivery Conditions, the Purchaser assigns an appropriate portion of such co-ownership to the Seller.
f) The Purchaser is not entitled to assign these claims, including the sale of accounts receivable to factoring banks without prior written consent by the Seller; sec. 354 a HGB remains untouched. In case of a sale of accounts receivable to a factoring bank without recourse (true factoring) the Seller give his consent only under the condition precedent of the Purchaser immediately transferring the payment made to him by the factoring bank to the Seller.
g) The Purchaser has the right to collect the assigned claims only as long as he complies with his contractual payment obligation vis-à-vis the Seller. Furthermore, the direct debit authorization can be revoked explicitly by the Seller, if - the Purchaser does not honor a bill when it is due or - the conditions of the right to refuse performance of the Seller pursuant to § 9.1 of these Sales and Delivery Conditions are met. With regard to the collection of these claims, the Purchaser is considered as the trustee of the Seller with the explicit obligation to transfer to the Seller any and all proceeds, minus his profit.
h) On demand of the Seller the Purchaser is obliged to notify his purchasers immediately of the transfer of title to the Seller and to hand over all information and documents to the Seller which are necessary for collecting the claims. In case of payment arrears, the Purchaser shall immediately nominate those purchasers to whom he has sold the goods to which the title has been retained, unless they have already been entirely paid for.
i) The Seller assumes the obligation upon the Purchaser�s request to release the securities if and insofar the realizable value of the securities available exceeds the aggregate of the secured debts due by more than 10 % or exceeds their nominal value by more than 50 %; the choice of the securities to be released remains with the Seller. Extra Flugzeugproduktions- und Vertriebs GmbH/AGB Englisch/Fineprint/Stand 16.08.2004
j) In case the Purchaser has foreseen the shipment of the delivered goods abroad, he is obligated to immediately give notice of this intention to the Seller in writing and, upon the request of the Seller, to provide a security to the Seller having the closest possible resemblance with and similar effects as the aforementioned retention of title under the laws of the country of destination of the goods. The Purchaser has to take all actions necessary to create and preserve such claims.
§ 7 Passing of Risk
7.1 The risk in the goods passes to the Purchaser in the moment the goods are handed over to the carrier or loaded into a vehicle of the Seller, at the latest, however, at the time the
goods leave the factory or the warehouse. This also applies, if part deliveries take place or if the Seller has assumed other services, such as costs of transport or transport itself. An insurance against loss or damage of the goods during transport will be effected by the Seller only on demand and at cost of the Purchaser.
7.2 In case the dispatch is delayed upon demand of the Purchaser or in case the Purchaser intentionally or negligently causes the delay of the collection of the goods himself, the passing of the risk occurs when the notice of readiness for the dispatch or of readiness for collection is given.
7.3 If notice has been duly given according to the Contract that the goods are ready for dispatch, demand for delivery has to be made immediately. Otherwise the Seller is entitled
after a reminder to dispatch the goods according to his will, while the Purchaser has to bear costs of transport and risk of loss. The Seller can also keep the goods within his discretion
and charge the Purchaser immediately.
7.4 If the transport on the pre-arranged route or at the pre-arranged time becomes impossible without the Seller�s fault, the Seller is entitled to deliver on a different route or at a different time. Additional costs of such an alternate transport have to be born by the Purchaser. However, the Seller hast to grant the Purchaser the occasion to comment on the change of route previously.
7.5 If any damage occurs during transport, the Purchaser is to arrange a statement of facts at the responsible authorities and to inform the Seller without delay.
7.6 The Purchaser has to accept delivered goods notwithstanding his rights pursuant to § 11 of these Sales and Delivery Conditions, even if the goods have immaterial defects.
§ 8 Obligation of Inspection and Notification
8.1 Defects of the goods have to be performed without undue delay and in writing, and under exact description of such defect at the latest fourteen days after delivery. Defects, which cannot be identified by the utmost careful inspection within the aforesaid term, shall be notified to the Seller immediately after such defects have become apparent.
8.2 If the Purchaser is an entrepreneur, instead of § 8.1 the following provisions apply:
a) The warranty rights of the Purchaser are subject to an observation of the duties of the Purchaser deriving from sec. 377, 378 German Commercial Code (HGB) and of the following provisions regarding the inspection of the goods and the notification of the Seller.
b) Notifications regarding obvious defects, which are not performed immediately, however at the latest within two weeks after the receipt of the good in writing and under exact
description of such defect, will not be taken into consideration by the Seller. Defects, which are not obvious and cannot be discovered in spite of fulfilling the obligations deriving from sec. 377, 378 German Commercial Code must be notified immediately after they have become apparent, however at the latest after two weeks after they have become apparent in writing and under exact description of such defect; any further processing or handling of the good must be stopped immediately. In case of not-observation of this § 8.2 b), all the warranty rights of the Purchaser will expire.
c) The goods which allegedly are defect are to be maintained in a condition in which they are at the moment of the discovery of the defect and are to be held ready for examination by the Seller. The Seller is entitled to examine the goods where they are located.
§ 9 Insufficient Capacity of the Purchaser
9.1 If after entering into a Contract the Seller recognizes, that his claim for payment is endangered due to the insufficient capacity of performance of the Purchaser, he has the right to refuse performance unless the Purchaser issues a suitable security within an appropriate term upon demand of the Seller.
9.2 Should the Purchaser not adhere or not adhere in time to such demand of the Seller, the Seller has the right to terminate the Contract and claim damages instead of the performance
9.3 In case of the Purchaser�s default of payment, which is the result of a major deterioration in the Purchaser�s financial position, the Seller has the right to terminate the Contract without granting a period of grace and claim damages instead of the performance.
§ 10 Intellectual Property Rights
10.1 Estimates of costs, drafts, drawings, and other documents remain in the ownership of the Seller. The complete copyright with all rights to all information and documents handed over during the contractual relations belongs only to the Seller in relation to the Purchaser. This applies also to all information and documents coming into existence due to initiations and co-work by the Purchaser. Disclosure to third parties may only be effected with the Seller�s permission. Drawings and other documents which are part of offers have to be handed back to the Seller on demand or, if the order is not placed, without undue delay.
10.2 If during production of goods according to drawings, samples, or any other specifications of the Purchaser any rights of thirds parties are violated, the Purchaser is obliged to release the Seller from all claims against him. The Seller is not obliged to verify the aforementioned documents with respect to existing Commercial Rights of Protection of third parties.
§ 11 Warranties
11.1 In case of justified and timely notice of defects pursuant to § 8 of these Sales and Delivery Conditions the Seller warrants that the goods delivered by him shall have the agreed quality according to the provisions of German Law regarding the sale of goods and according to the subsequent provisions.
11.2 In case of proven defects, the Seller will perform his duties according to his choice either by supplying the Purchaser with a new product free of defects (substitution delivery) or by eliminating the defect (repair). In case the Purchaser is a Consumer, it is not the Seller but the Purchaser who is entitled to choose between the substitutional delivery and a repair of the good. However, in such case the Seller is entitled to reject the type of repair chosen, if such repair will lead to unproportional costs and another type of repair will remain without essential disadvantages for the Consumer.
11.3 On the Seller�s request, in case of a repair of the product, the Purchaser has to specify his notification of defects and to present written reports of defects and other information, which are suitable for an analysis of the defect. The Seller bears the costs of repair, as far as they are not increased by delivery of the goods to a different as the contractually agreed place of delivery. In case of a proven defect in title, the Seller will perform a supplementary fulfillment by means of granting the Purchaser a legally indisputable possibility of usage of the delivered goods or � according to the choice of the Seller � on substituted or modified equivalent goods.
11.4 If the substitution delivery or the repair according to the previous paragraph remains unsuccessful, the Purchaser is entitled to withdraw from the Contract or to make a reduction
of the purchase price under the condition of having previously set an adequate term in writing, unless according to German Law the setting of such a term is superfluous. In the event that the Purchaser withdraws from the contract because of a defect of the good, the Purchaser is not entitled to claim damages for such defect. In case the Purchaser withdraws from the Contract he is liable for deterioration, loss, and non-derivation of a profit from the goods, not only for care one usually employs in one�s own affairs, but also for any negligence on his part.
11.5 The Seller will reimburse the Purchaser for damages and expenses deriving from a defect only according to the limitations as provided for in § 12 of these Sales and Delivery Conditions.
11.6 The Purchaser shall notify the Seller of any and all claims asserted by third parties infringing with the Purchaser�s possibility of usage immediately and exhaustingly in writing. Already now, he authorizes the Seller to solely conduct judicial or extra judicial legal disputes with the third party. If the Seller exercises such right, which is exclusively in his discretion, the Purchaser must not recognize the claims of the third party without the consent of the Seller and the Seller is obliged to ward off the claims on his own expense and to hold the Purchaser harmless of any costs and damages deriving from such defense, unless they are based on a conduct of the Purchaser which is contrary to his obligations. The provisions of this paragraph remain unaffected from the Statutes of limitations as provided for in § 12.3 of these Sales and Delivery Conditions.
11.7 Statements of the Seller regarding the quality of the goods are not to be considered as guarantees with regard to the quality, unless the parties explicitly agree upon such a guarantee.In such case the rights of the Purchaser are determined by the content of the guarantee given by the Seller. The Purchaser has to assert his rights deriving from the guarantee within two months after a case of guarantee has materialized (term of foreclosure). If the Purchaser is an Entrepreneur, public statements, promotional statements and advertisements are deemed not to be descriptions of the characteristics (�Beschaffenheitsangaben�) of the good.
§ 12 Liability
12.1 In any case of contractual or non-contractual liability the Seller shall pay damages or expenses only:
a) In case of a willful conduct and gross negligence without limitation; in case of willful conduct or gross negligence of ordinary vicarious agents the Seller shall be liable limited to the amount of the predictable damage, the materialization of which was to be prevented by the violated obligation.
b) In other cases: only in case of a violation of an essential contractual obligation of the Seller, an executive employee and other agents of the Seller which jeopardizes the realization of the purpose of the Contract, however limited to the amount of ¤ 25,000.00 for each event of damage and to ¤ 50,000.00 in total, unless in each particular case such amount is to be considered inadequately low. The afore-mentioned limitation of liability does not apply, if the Purchaser is a Consumer. In case of slight negligence the Seller shall be liable vis-à-vis the Purchaser limited to the amount of the predictable damage, the materialization of which was to be prevented by the violated obligation.
c) To any further extent: if the Seller is covered by insurance with regard to the damages occurred to the extent of the coverage of the insurance and under the suspensory conditionof the payment by the insurance company.
12.2 The Seller is free to resort to the objection of contributory negligence of the Purchaser. The limitations of liability according to no. 1 are not applicable in case of damages resulting from an injury to life or physical health or resulting from assuming guarantees of condition or resulting from fraudulent non-disclosure of a defect or from the statutes on product liability (�Produkthaftungsgesetz�).
12.3 The warranty period for any claims according to §§ 11.1 - 11.4 shall be (i) 10 years in the case of a defect in title in the form of a third party�s right in rem to claim the surrendering of the goods, (ii) 1 year for any other defect of the products, if the Purchaser is an Entrepreneur and (iii) 2 years for any other defect of the products, if the Purchaser is a Consumer. The warranty period shall begin with the delivery (�Ablieferung�) of the product. In case of contractual or non contractual liability, claims against the Seller regarding the reimbursement of damages or expenses � with the exclusion of cases of willful conduct or an injury to life or physical health - must be asserted within one year. This does not apply with respect to goods that have been used for a building according to their ordinary way of usage and that have caused the buildings defects. In case of claims against the Seller regarding the reimbursement of damages or expenses deriving from contractual or non contractual liability, the period of limitation starts with the moment provided for under sec. 199 para. 1 German Civil Code (�BGB�). It expires at the latest with the expiry of the maximum term set by sec. 199 para. 2 to 4 BGB.
12.4 The suspension of the Statutes of limitations concerning claims deriving from or in connection with the contractual relationship between the parties according to sec. 203 BGB (German Civil Code) ceases in the moment of the Seller�s or the Purchaser�s refusal to continue negotiating the claim or the circumstances on which the claim is based on. Unless one of the Parties expressly declares in writing that the negotiations have failed, the refusal is deemed to have occurred six months after the dispatch of the last correspondence, the object of which was the claim or the circumstances on which the claim is based on.
§ 13 Place of Performance, Jurisdiction, Applicable Law
13.1 If the Purchaser is an Entrepreneur, the place of performance for all obligations deriving from the Contract is the place of the delivering factory or the warehouse of the Seller. For all lawsuits, also in respect of a bill or cheque lawsuit, the courts of the principle place of business of the Seller, i.e. Hünxe, Germany, shall have exclusive jurisdiction, if the Purchaser is an Entrepreneur.
13.2 The Contract is subject to non unified German Law, i.e. German Civil Code (BGB) and Commercial Code (HGB). The Vienna UN-Convention of April 11, 1980 on Contract for the International Sale of Goods (CISG) shall not apply.
§ 14 Final Regulations
14.1 Previous sales and delivery conditions of the Seller are herewith rendered invalid.
14.2 The partly or total invalidity or unenforceability of one or several sections of these regulations has no effect on the validity or enforceability of the remaining sections.
Extra Flugzeugproduktions- und Vertriebs GmbH, Hünxe, August 16, 2004
Extra Flugzeugproduktions- und Vertriebs GmbH/AGB Englisch/Fineprint/Stand 16.08.2004 1
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