General Sales Terms and Conditions
OECON Mobilraum GmbH

Bartholomae, January 1st, 2004

1. Scope of application
1.1 These General Terms and Conditions are applicable for all businesses between OECON and her clients – excluded are rental and lease contracts, for which special terms and conditions are applicable.
1.2 Clients’ terms of purchase are not affirmed by OECON, even if there are no explicit contradictions. Different agreements only apply if OECON acknowledges them explicitly in writing.
1.3 The client acknowledges the General Terms and Conditions of OECON even if he first contradicted them, but then accepts OECON’s services.

2. Offers, prospects, illustrations, copyright, ownership
2.1 Indications of weight and measurement in offers and prospects may be inexact. Illustrations have only the purpose to explain texts and may differ from products.
2.2 OECON keeps the copyright on all plans, drawings, blueprints, offers, etc., and, until the conclusion of contract, the property.

3. Contracts on new and used objects
3.1 Concerning written orders the client is bound by contract for 14 days after OECON’s receipt of the order. An oral or telephonically declaration by OECON is sufficient for the form of acceptance. Should the acceptance of the order have not been declared within this time limit, or should the declaration of acceptance contain differences from the order’s content, the client is obliged to allow an appropriate time limit to withdraw the changes. Should OECON refuse to do so, or should OECON not give an explanation within the time limit, the client may take back the order. Until the order is taken back, OECON may accept the order also after expiration of the time limit.
3.2 For offers on used objects an intermediate sale always remains reserved.

4. Delivery, delivery dates, delay, impossibility of performance
4.1 Unless different is explicitly agreed in writing, OECON has the right of partial delivery.
4.2 The time limit of delivery prolongs in cases of force majeure, industrial conflicts, particularly strike and lockout, and in the incidence of unforeseeable hindrances out of reach of the will of OECON, that are not caused by a lack of organization and that have influenced the duly fulfillment of the contract in a more than negligible way. The clause is also applicable if OECON’s subcontractors have to face such circumstances.
4.3 In the case of postponement of delivery on a client’s request, the client will be charged at least 1% of the invoice amount for every month after the postponement.
4.4 Client’s claims for damages related to delay or an impossibility of performance on OECON’s side are excluded for cases of ordinary negligence. For other cases of negligence there is a limitation of EUR 5.000,00 concerning claims for damages resulting from business contacts.
4.5 If there is an agreement over a contractual penalty for the case of delay or an impossibility of performance, further claims for damages due to delay are excluded – irrespective of OECON’s right on reduction of the contractual penalty according to § 343 BGB (German Civil Code).
4.6 If OECON gets into delay with a partial delivery, clause 4.5 is only applicable for the respective partial delivery. The client may withdraw from the whole contract, if the partial delivery has no importance for him.

5. Acceptance
5.1 A formal acceptance procedure takes only place in cases when such is explicitly agreed upon, or in cases when such is regulated by law, or when it is officially decreed. The client pays the costs of a formal acceptance procedure.
5.2 If the client refuses the acceptance, or if he delays the acceptance for reasons he is liable for, the acceptance is acknowledged as effected 5 days after the announcement of completion of the work.

6. Passing of risk, transport, insurance, notification of defects
6.1 The risk of accidental loss or damage is also passed over to the client in cases when the delivery “free on construction site” (or similar) reached the orderer’s point of destination, or, in cases of a delivery “ex works”, when objects are stored ready for picking-up in the works or at the agreed delivery point.
6.2 If OECON delivers “free house”, and the delivery to the client is executed by a transport agency, then the client has to inspect the delivered objects immediately and thoroughly. He has to record defects and damages in the transfer documents.
If the client grants “clean receipt” for the transport agency or the freight carrier, the assertion of defects and damages, that could or could have been caused by the transportation is limited to the compensation that OECON receives from the transport agency.
6.3 If OECON takes responsibility for delivering the object of purchase to the point of destination, then the client has to ensure, that the installation- or assembly location can be reached without difficulties with the for such objects usual or necessary means of transportation or unloading devices (for example low-loading truck; truck mounted crane).
6.4 In cases of self-delivery executed by OECON, or in cases of a delivery by a transport agency, OECON may charge a special compensation for additional costs caused by waiting periods if such waiting periods result, after a timely delivery, from reasons that are not in the liability of OECON or the transport agency.

7. Prices, payment and due date
7.1 Prices are, if not otherwise notified, net prices. They are effective including the added value tax ex works, including shipment in the works.
7.2 Unless otherwise agreed, all payments are due to the stipulated dates without deduction, otherwise within 10 days after invoice date. Payments to OECON have to be made free of charges.
7.3 For late payments OECON may charge an interest on account of delay of 8% (purchase of consumption goods: 5%) over prime rate. The evidence of a higher damage caused by delay remains reserved.
7.4 In cases of default of payment OECON has the right to accept third party payments for the client’s account, even if the client enters an objection.

8. Right of detention, set-off
8.1 The client does not have the right to retain payments, no matter what reason he presents.
8.2 The client’s set-off with other than undisputable or legally effective counterclaims is not permitted.

9. Retention of title
9.1 Goods delivered by OECON remain, until the fulfillment of all claims resulting from the business contact, in the property of OECON (conditional goods). If the client is merchant, this is also applicable for claims originating in the future or for conditional claims. In the case of a current account the conditional goods serve as security for OECON’s accounts receivable.
9.2 The client has only the right to sell conditional goods according to the usual course of business and according to his usual terms and conditions as long as he is not in delay, and provided that the claims resulting from the resale are passed over to OECON according to the conditions hereafter. The client has no right of any other disposal over the conditional goods. On a par with the resale of conditional goods by the client are the installation of conditional goods in realty or buildings by the client, further the use of conditional goods for the fulfillment of other work contracts or their use for the fulfillment of contracts of labor and materials.
9.3 The client’s claims based on the resale of conditional goods have to be assigned to OECON already in advance. OECON accepts the assignment. These claims serve OECON to the same extent as security for OECON’s total claims as the conditional goods. If the client sells conditional goods together with other goods not sold by OECON, the client assigns the claim resulting from the resale in the ratio of the invoice value of the conditional goods to the invoice value of the other goods. OECON accepts the assignment. In case of the sale of goods on which OECON holds a share of joint property, the orderer assigns a share to OECON that corresponds to the share of joint property. OECON accepts the assignment.
9.4 Upon OECON’s request the client is obliged to inform his customer immediately about the assignment to OECON and to give OECON the information and documents necessary for recovery. The client has under no circumstances the right to any further assignment. This is also applicable for factoring businesses, unless OECON has agreed in advance.

10. Warranty
10.1 In a case of warranty OECON, according to her choice and within an appropriate period of time, has the right to the remedy of defects or the right to a substitute delivery. If the remedy of defects or the substitute delivery do not lead to success, the client’s legal rights concerning the reduction of compensation or the annulment of the contract revive.
10.2 Further claims of the client concerning defective delivery are excluded according to clause 11.
10.3 In the case of lack of guaranteed features OECON is, in business contacts with a merchant, only insofar liable for consequential damages, as the guarantee pursued the purpose to secure the client explicitly against the occurred consequential damages caused by deficiency.
10.4 Used goods aside from the purchase of consumable goods are sold as they stand or lie and under exclusion of any warranty.

11. Legal liability and term of limitation
11.1 Claims for damages against OECON, her legal representative or vicarious agents are limited on such cases, when the breach of contract is based on intent or gross negligence.
11.2 Otherwise client’s claims for damages based on any kind of legal claim are excluded, including negligence prior to the conclusion of contract, positive breach of contract, warranty and actionable tort.
11.3 The regulations in clause 11.1 and 11.2 are not applicable if a primary obligation is violated; however also in this case and in all other cases of negligence the client’s claims for damages are limited to the immediate damage, while claims for consequential damages are excluded.
11.4 If, on legal grounds, there is no obligatory longer period of limitation, all claims against OECON expire by limitation 1 year after the delivery or acceptance of OECON’s services. For assembly parts the warranty conditions of the respective manufacturer are applicable.
11.5 The provisions of the product liability law remain untouched.

12. Containers etc. as buildings
12.1 The client takes responsibility for the fact, that the place of installation, including the firm ground he choose and created, has the necessary suitability.
12.2 The warranty and legal liability of OECON, and the limitation of the client’s claims, is also assessed for containers in the sense of clause 12.1 exclusively according to the principles on the legal liability for movable goods, if receptacles and containers, as spatial elements, are entirely produced and transported as such by OECON. This is also applicable for such containers, where the walls are left out with the purpose to get more space.
12.3 Only for such works that serve on-the-spot the purpose to connect delivered containers with the grounds or with other objects than delivered by OECON, the warranty, legal liability, and term of limitation is determined by the rules of the BGB (German Civil Code); section “Arbeiten an Grundstücken oder Bauwerken (works on grounds and buildings)”.

14. Client’s duties of indication and permissions
14.1 The client has the duty to provide timely the official permits necessary for the installation of goods and objects that shall be delivered by OECON on his own cost. As long as not all permits are at hand, OECON is not obliged to deliver.
14.2 The client has the duty to notify OECON about special legal or official rules, guidelines and requirements, provided that their neglect endangers the fitting or the installation of the object.
14.3 If the client requests a construction or such an outfit of an object, that does not or no longer comply with legal or official rules for the use to the specific purposes, then the client has neither the right to reduce the price of purchase nor to withdraw from the contract in cases when the authorities prohibit him the use of the object for the specific purposes.

15. Place of performance, forum contractus, applicable law, partial invalidity
15.1 The place of performance for the client’s liabilities is Bartholomä.
15.2 The forum contractus is OECON’s registered office if the client is merchant, legal entity under public law, or special property under public law.
15.3 For all legal relations between the client and OECON exclusively the material law which is valid at OECON’s place of business is applicable.
However these terms of business are predominant, in so far as they differ from the legal requirements of law defined by the UN Convention on the International Sale of Goods.
15.4 These General Terms and Conditions, in so far as they regulate parallel facts, have supremacy before the general interpretation of any commercial clauses (such as for example Incoterms).
15.5 Any invalid or void provision in these terms of business shall not affect the validity of the other terms.

16. Original text
16.1 The General Conditions of OECON have been drawn up in German and English and may also be translated into other languages. The German version shall be deemed to be the binding text.

Print page | Update 06 MAY 2011