General Terms of Sales & Delivery (as of October 2009)

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§ 1 General

(1) For all deliveries and other services of the company Daphne Europe GmbH (in the following referred to as the “Seller”) solely the following terms of sales and delivery are valid; they are valid only for companies in the sense of Section 310 Par. 1 in connection with Section 14 Civil Code.
(2) Deviating conditions of the buyer, which the seller does not recognize expressly, are noncommittal, even if the seller does not contradict them expressly.
(3) Inclusion and interpretation of these Terms of Sales and Delivery are exclusively determined, just like conclusion and interpretation of legal transactions with the buyer according to the laws of the Federal Republic of Germany. The application of the United Nations Convention for the international Sale of Goods (CISG) is expressly excluded.
(4) The inefficacy of individual provisions of the present regulations or its components leaves the effectiveness of the remaining regulations unaffected. The contracting parties are obligated, within the context of the reasonable, to act in good faith (bona fide) and substitute an ineffective provision by an effective regulation which comes closest to the economic objective, insofar no substantial change of contents of the contract is caused; the same is valid if circumstances needing regulations are not expressly determined.
(5) Place of execution of all obligations resulting directly or indirectly from this contractual relation, including the obligation to pay, is the place of business of the seller.
(6) Area of jurisdiction is the competent court for the company headquarters of the seller; insofar the buyer is a tradesman. The seller is also entitled to submit a complaint at a court which is competent for the place of business or a branch of the buyer.

§ 2 Supplies, Scope of Services and Conclusion of a Contract

(1) Contract offers of the seller are not-binding.
(2) For the range of the contractually owed services, solely the confirmation of order of the seller is determining.
(3) Partial deliveries are permissible.
(4) For the correctness the documents of the buyer such as illustrations, designs, measurement and statements on weight or for other technical defaults of the buyer, which are object of the order or confirmation of order, the buyer bears the sole responsibility. The buyer cannot refer to any defects if the object of the purchase corresponds to the defaults of the buyer. To that extent, the liability of the seller is excluded.

§ 3 Prices and Terms of Payment

(1) The delivery is affected pursuant to Incoterms 2000 of the International Chamber of Commerce in Paris. The delivery is effected DDP-VAT unpaid or EX-WORKS Gebze, Turkey or - if deviating – by stipulating the place, at which the commodity stands ready for collection.
(2) With culpable excess of the time determined for payment - under reservation of exercising more extensive claims - interest accrue at a value of 8 per cent points over the in each case valid basis interest rate of the European Central Bank.
(3) In case the buyer is in default with a payment of several liabilities arising from separate deliveries, then all other outstanding payments become immediately and automatically due for payment without it requiring a separate notice of default. As of this time, the seller is entitled to request an advance payment for new deliveries.

§ 4 Set-off, Retention and Assignment

(1) The buyer is not entitled to set-off or execute the right of retention in respect of pecuniary claims of the seller arising from delivery and services, unless the set-off account receivable is undisputed or legally found valid.
(2) The seller is entitled to assign his accounts receivable from deliveries and services for financing purposes.

§ 5 Period of Delivery

The indication of one point of period of delivery is affected according to the best discretion and extends appropriately if the buyer delays or omits his necessary part or agreed upon co-operation actions. The same is valid with measures in the framework of labour disputes, in particular strikes and lockout as well as with the entrance of unexpected obstacles, which lie outside of the will of the seller, e.g. the delay of delivery of a pre-supplier, traffic and operational disturbances, material or energy shortage etc. Also buyer caused amendments of the goods to be delivered lead to an appropriate extension of the time for delivery.     

§ 6 Transfer of Peril

The peril is transferred to the buyer as soon as the seller has put the commodity to the buyer’s disposal and has notified the buyer hereof. The peril is also transferred to the buyer if the respective commodity is handed over to the carrier and the customer is informed hereof.

§ 7 Retention of Title

(1) The seller retains the ownership of the supplied goods up to the complete payment. The retention of title is also valid until all; also future as well as conditional accounts receivable from the business relation between buyers and seller are fulfilled.
(2) The buyer is not authorised to transfer by way of security or pledging the commodity, however is entitled to the further sale of the commodity in the duly course of business. He already surrenders hereby to the seller the accounts receivable resulting towards his business partners.
(3) If the commodity of the buyer is processed or built into another product, the retention of title also extends to the entire new product. The buyer acquires co-ownership to the fraction, which corresponds to the relation of the value of his commodity supplied by the seller.
(4) If the value of all existing collateral for the seller exceeds the existing accounts receivable effectively around more than 20%, then upon the requests of the buyer, the seller will release collateral according to the choice of the seller.
(5) The seller is entitled to enforce the retention of title without withdrawing from the contract.

§ 8 Warranty Claims

(1) Is the purchase a commercial transaction for both parties, then the buyer has to inspect the commodity immediately after receipt, insofar this is duly according to regular course of business, and if any defects are found, to indicate these the seller immediately. If the buyer omits this indication, then the commodity is considered as accepted, unless it concerns a defect, which was not recognizable during the inspection. In all other respects Section 377 of Commercial Code are valid.
(2) The warranty claims are primarily limited to supplementary performance. When failing the supplementary performance, the buyer has the right and choice either to request the reduction of payment or the cancellation of the contract.
(3) More extensive claims of the buyer, as far as these do not result from a warranty assumption, are impossible. This is not valid with premeditation, rough negligence or injury of substantial contractual obligations of the seller.
(4) The warranty claims fall under the statute of limitations after one year of delivery of the purchased item.

§ 9 Liability

(1) Insofar nothing else is determined in these conditions we are liable for payment of damages caused by injury of contractual and non-contractual obligations, or during the preparation of the contract only with premeditation or rough negligence of our legal representative or executing aides as well as with culpable injury of substantial contractual obligations or warranty assumptions. With culpable injury of substantial contractual obligations we are liable - except in the cases of premeditation or rough negligence of our legal representative and executing aides - only for the contract-typical foreseeable damages. In all other respects our liability is excluded for defects and follow-up defects.
(2) The aforementioned limitations of liability are not valid with injury of lives, bodies and health.
(3) Claims arising due to injuries to persons or damages to privately used items remain unaffected according to the product liability law.