General Terms and Conditions

ab 5/1/2004

I. General

  1. The following terms and conditions of the User apply to all contracts concluded between the User and the other contracting party concerning the supply of goods. They also apply to all future business relations even if not expressly included or agreed. No terms or conditions of the business partners, unless expressly accepted by Dr. Eberhardt GmbH, are binding for Dr. Eberhardt GmbH even if the application of other general terms of business is not expressly excluded. The terms and conditions of the User (Dr. Eberhardt GmbH) also apply if the User accepts the other contracting parties delivery without reservation and is aware that the other contracting party's terms oppose or deviate from these terms.
  2. All information regarding dimensions, weights, outputs and other performance-related data or specifications in catalogs, brochures, illustrations, sketches, etc. are only approximate unless expressly agreed as being of binding nature. Alterations and changes, in particular those required for technical reasons, can be made at any time.

II. Proposal and conclusion of contract

  1. Our proposals are without any obligation. An order to be effective and binding requires our written confirmation. Any extension, limitation or other change in the order confirmation that is not contained in the order is deemed to be accepted by the buyer / ordering party unless objection is raised without delay after receipt of the order confirmation.
  2. Business mediated by agents as well as arrangements or collateral agreements made orally or by telephone in order to be effective require our confirmation in writing.
  3. No claim on us can be based on a mistake, typing error, etc.
  4. The buyer/ordering party is fully responsible for all drawings, samples, gauges, designs, films, blocks, etc. provided to us as the basis for our supply, including the responsibility that the use of none of the above documents violates a right of any third party. We are not responsible to verify the existence of such rights. The buyer/ordering party releases and keeps us harmless from all claims a third party may raise.
  5. All cost estimates, drawings, designs, facilities, films, printing plates, blocks, tools and other internal materials made or caused to be made by us are our property and we are also the copyright holder and can use any such material. These materials must not be disclosed to any third party and must be returned without delay if requested.
  6. Parts provided by the buyer/ordering party for processing must be designed in a way to ensure that Dr. Eberhardt GmbH can prepare a proper technical drawing. All costs of rework or return are to the account of the buyer/ordering party.

III. Price

  1. If a general price increase or reduction occurs between the date of conclusion of the contract and the date of delivery, the changed price in effect at the date of delivery will be charged. For contracts based on CIF or CRF delivery, the prices are calculated on the basis of the official freight cost at the time of conclusion of contract. Any increase in the official freight rates and/or port charges must be borne by the buyer.
    Rate of exchange clause: All prices - unless specified in foreign currency - are based on the middle rate of exchange of the Frankfurt Exchange on the day of issue of the order confirmation. We reserve the right, if the rate of exchange changes by more than ± 2%, to take up talks with the target for a revision of price for the goods undelivered or cancel the contract or make out our bill in Euro currency, the latter without prior information to the buyer/ordering party.

IV. Term of delivery

  1. The term of delivery starts on the date of issue of our order confirmation or settlement of all details of performance and receipt of advance payment (only if express reference to the advance payment is made), whichever occurs latest. All references to time deadlines are made in good faith and are binding on us only if production is not disrupted and we have the use of all transport facilities as needed. We cannot be held liable for not meeting the deadlines. The exclusion of claims for damage is limited to malicious intent and gross negligence.
  2. Any event of force majeure is cause for us to stop the delivery for the duration of the event, including a reasonable extra time to resume delivery, or to cancel the contract or any part of it as required by the effects of the event. If due to the effects of a case of force majeure delivery is delayed by more than three months, the buyer can cancel all deliveries affected by the event of force majeure. Events of force majeure include without limitation: all impacts, notably of the elements, whose prevention or avoidance is beyond our control, such as e.g., earthquake, lighting, frost, storm, fog, flood; also war, laws, actions by authorities, confiscation, prohibition of export, import or transit, international payment restrictions, non-availability of raw materials or energy; also disruption of operations, e. g., machine breakage, explosion, fire, strikes, sabotage, lockout in our factories or in factories which supply our factories with raw materials, auxiliary materials or other input materials.
    All events beyond the control of Dr. Eberhardt GmbH are to buyer's account.
    No claim for damages can be based on delay of delivery, non-delivery or cancellation.
  3. The goods are deemed to be delivered in time if they have been accepted by the end of the term, delivered to the transport agent or carrier, made available for loading or a communication sent that the goods are ready for dispatch.

V. Dispatch

  1. The risk in all deliveries, including partial deliveries, including the risk of confiscation, passes on the buyer/ordering party when the consignment leaves our premises, has provided ready for transportation in the premises of a third party or the buyer/ordering party has received notification that the goods are ready for shipment. If acceptance by the buyer/ordering party is agreed, the risk passes to him. The risk also passes if FOB, CIF, CFR or similar clauses are agreed or the goods are delivered freight paid.
  2. Goods for which a notification that the goods are ready for dispatch has been sent must be accepted. Otherwise we are entitled to warehouse the goods at the cost and risk of the buyer/ordering party and charge the buyer/ordering party as if the goods had been delivered.
  3. All deliveries are made EXW unless agreed otherwise. All transport charges are on the buyer/ordering party.
  4. The packaging and dispatch of the goods are decided by us in good faith but without any obligation on us.

VI. Payment

  1. All bills, including bills for partial deliveries, are due for payment on receipt of the invoice. If payment is delayed, interest is charged at the rate of 8 % above the valid base rate at that time, plus valued-added tax. If the agreed terms of payment are not observed, we can cancel any part of the contract remaining undelivered or claim damage due to non-performance of the contract. The buyer/ordering party is not allowed to withhold or set off payment for any counterclaim allegedly not accepted by us. Any set-off by the buyer/ordering party occurs in a legal context with the claim by Dr. Eberhardt GmbH, the claim is subject to a court judgment and the claim has been accepted by Dr. Eberhardt GmbH . All payments are at first towards interest and cost, then against capital, starting with the longest standing debt. We are not obliged to make delivery if the buyer/ordering party stops payment or if bankruptcy proceedings are opened against the buyer/ordering party.
  2. The acceptance of external or bills of acceptance is reserved and will be decided from case to case. Checks and drafts are only credited as conditional payment on condition of the receipt of the full amount. The maximum term of validity of a draft is limited to 90 days. If we accept a draft, all discounting, bank and collection charges are to the account of the buyer/ordering party.
  3. If partial delivery is agreed, each such delivery is a transaction and is deemed to be a separate business. If the buyer/ordering party fails to discharge of his obligation under the partial shipment, we are not obliged to make further deliveries and in any such case the buyer/ordering party is obliged to pay compensation for the loss suffered by us on account of non-delivery.

VII. Retention of title

  1. All goods delivered by us remain our property until payment in full of all amounts due to us now or in future for whatever cause and without consideration to the date of maturity, even if the payments are made for a specifically designated claim. As long as amounts are due and outstanding, the goods title to which is retained is used as security for any amounts due to us.
  2. The assertion of retained title in the event of delayed payment or if any of our claims is in jeopardy of non-payment is not deemed to be a withdrawal from the contract.
  3. The buyer/ordering party is not permitted to provide goods delivery by us as security or lien or to create any other charge on it. The buyer/ordering party is obliged to inform us without delay of the existence of a lien or any other any other limitation of our title by a third party. The buyer/ordering party will make any third party aware of our title in the goods and on our request shall submit written evidence of such making aware.
  4. Title is also retained in new objects produced as a result of processing our goods. If our goods are mingled or processed together with other goods which are not our property, we obtain co-ownership in the new product in the ratio of the value contributed by our goods.
  5. The buyer/ordering party shall safekeep at no cost for us the goods title to which we retain.
  6. The buyer/ordering party can dispose of the goods title to which is retained in the ordinary course of business on the understanding that this permission can be revoked at any time. The buyer/ordering party hereby assigns to us all claims, including subsidiary rights, in connection with the disposal of the goods for any cause (e.g. claims on the insurer in case of fire).
    The assigned claims are used as security of all claims in clause 1 above. If goods title to which is retained is disposed of by the buyer/ordering party together with other goods not belonging to us together with which our goods have been processed or mingled, the assignment of claim from such disposal is limited to the value of the goods to which we retain title in the new product.
  7. The buyer/ordering party is entitled to collect claims from the disposal until revoked, to which we are entitled at any time. The buyer/ordering party is not entitled to assign such claims as security to a third party. If requested by us, the buyer/ordering party is obliged to inform its buyers of the assignment of claim to us. The permission to collect ceases to be effective without the need of revocation if the buyer/ordering party suspends payment. If the permission to collect expires, we can collect all assigned claims directly from the party owing the debt. If requested by us, the buyer/ordering party shall disclose the names of the debtors, the amount of debt and the cause of the debt without delay.
  8. If the value of our securities exceeds our claims by more than 20 per cent altogether, we are obliged to release as much securities of our choice if so requested by the buyer/ordering party.
  9. If the buyer/ordering party delays payment or defaults or if its assets dwindle, etc., we are entitled to demand delivery of the reserved goods and collect them from the buyer/ordering party. All cost incurred in this connection are to the account of the buyer/ordering party.
    The buyer/ordering party has no right of ownership.

VIII. Notice of defect and warranty

Our products are made from best raw materials and with greatest care. Our warranty for defects under statutory provisions and contractual stipulations is as follows:

  1. Our warranty for defects in the delivered goods is limited to defects occurring when the goods are used as intended and under the conditions laid down by us and provided the defects are due to design or manufacture. Defects and damage caused by improper use or handling, unauthorized change or rework, etc, by the buyer/ordering party or any third party or due to normal wear and tear are not covered by warranty. We are liable for defects of material only if and to the extent to which the material was supplied or processed by us and we should have detected the defect if we had acted with professional diligence.
  2. Our liability for products produced from drawings supplied by the buyer/ordering party is limited to defects caused by failure to comply with the information in the drawing. If we are free to develop a design solution, claims for defects in this respect can only be made if the buyer/ordering party can show that our product is not generally state of the art for reasons for which we are responsible.
  3. Any consultation, oral or written, concerning the use of our products is without obligation or liability on our part, including rights, if any, owned by third parties, and does not relieve the buyer/ordering party from the obligation to find if our products are suitable for the intended purpose.
  4. Claims for defect can only be accepted provided they are raised in writing latest within 8 days of the arrival of the goods at the place of destination. Defects which cannot be detected despite careful inspection must be communicated without delay after detection, however, not later than 4 weeks after the arrival of the goods at the destination, and in any such case the processing or machining of the defective goods must be stopped immediately.
    For any claim raised and accepted, we will either reduce the price or replace the defective goods (provide substitute) or return the purchase price, whichever is preferable to us.
    Other claims of whatever nature, under whatever title, in particular, claims for compensation of direct or indirect damage or lost profit, in excess of what has been described above is expressly excluded.
    The raising of a claim for defect does not relieve the buyer/ordering party from paying all bills. Complained goods must not be returned to us except with our prior consent.
    No quality complaints are accepted for goods not complying with our quality standard if the lower quality of these goods is expressly indicated.
  5. We are not obliged to repair defects as long as the buyer/ordering party defaults on payment.
  6. If a claim is raised and it is found that it is illegal or if the preconditions for warranty do no exist, the buyer/ordering party must bear the cost incurred.
  7. We do not grant warranty for products from other suppliers. All rights to claim warranty on the supplier are hereby assigned to the buyer/ordering party.
  8. Adhesive tapes, adhesive film, film and products composed thereof (e. g., punched, plotted) are products of the plastics-processing industry to which the common local tolerances of size and thickness apply. Manufacturing tolerances of +/- 15 % of the material thickness and +/- 5 % in length, width or contour dimensions are no cause for complaint. For volume-produced goods, we reserve a counting difference of +/- 3 % and a waste rate of 2 % of the complete consignment. We also reserve 10% short delivery or overdelivery.
  9. No warranty is given that the inks used on printed adhesive tapes and adhesive film are fast to light or water, nor for 100% adhesion. Deviations of color of the raw material or changes of the properties of material, inks or inking which occur in production are no causes for complaint. No warranty is given that when inks that are not our standard inks are used a follow-up contract can be delivered in the same finish. Possible minor blurs of printed outline and register fluctuation of +/- 5 mm are no causes for complaint.
  10. No warranty is given for printed film products that the inks used are fast to light or water, nor for 100% durability. Register inaccuracy of ± 5mm on printed products and blurred edges, fringes or letters are not accepted as causes for complaint.
  11. The warranty period of chemical products which are subject to natural ageing (e.g., adhesive), is that available from the suppliers of these products. The warranty period granted for chemical products bottled by us starts at the date of bottling and considers the stability of the product in the container.

IX. Data processing

The buyer/ordering party agrees that data disclosed in the course of our business relationship can be saved and processed by automatic means for our internal use.

X. Liquidated damages, product liability

Any liability for damage is excluded unless caused by malicious intent or gross negligence. We are not reliable for indirect or consequential damages.
Liability under product liability legislation is excluded to the extent permitted by law. The buyer/ordering party is obliged to follow all warnings and instructions for use. In case of doubts in connection with the use of a product, the buyer/ordering party is obliged to contact Dr. Eberhardt GmbH to obtain information.

XI. Applicable law

All legal relationships between Dr. Eberhardt GmbH and the buyer/ordering party are subject to German law.

XII. Place of performance and legal venue

Place of performance of supplies is Jena.
Jena is agreed as place of performance of payments.
The legal venue is Jena, Germany.

XIII. Severability

If any provision in these General Terms should be or become invalid, the other provisions remain valid and fully effective. The invalid provision will be replaced by a valid provision which comes as closely as possible to the original economic and legal intention of the invalid provision.

Dr. Eberhardt GmbH
Klebetechnik + Spezialprodukte
Dorfstraße 71, 07768 Gumperda Tel.: 036422 - 60254 Fax: 036422 - 60255