4. Modalities of delivery, down-payments, packaging, force majeure, passage of risk, damages and right to modifications
a. Unless otherwise agreed upon in writing, all deliveries are made for the account and at the risk of Customer on an ex factory or ex warehouse basis. The Incoterms of the International Chamber of Commerce in Paris (hereafter "Incoterms") in their respective latest version shall apply in addition hereto.
b. Any delivery periods or times shall be not binding and of approximate nature only, unless expressly designated by us in writing as "fixed". All periods of delivery shall be subject to complete clarification of all issues relevant for the execution of the respective order. In any case of subsequent changes or amendments of the order made by Customer, the respective delivery period or time shall start to run anew. In any event, delivery periods shall only commence if all technical issues relating to the respective delivery of Customer have been clarified and Customer has fully complied with its contractual obligations concerning the said delivery. If Goods are purchased from third parties or are manufactured on a contract work basis, all deliveries made to Customer are subject to the timely receipt by us of all materials, components and the Goods from said third parties .
c. Prior to the delivery of any Goods, Customer shall be required to make a down-payment against our invoice upon our request. We shall be entitled to make deliveries in installments.
d. In any event where our performance and, in particular, deliveries are substantially impaired or even became impossible due to reasons for which we are neither responsible nor liable , such as governmental restrictions, fire, strike, lockouts, traffic limitations, shortages of production, energy and raw materials and in general all such events which might adversely affect production and/or shipment of the Goods concerned (e.g. mobilization, wars, riots, natural disasters and oter unfreseeable circumstances beyond our reasonable control), we shall – at our sole discretion – be entitled to rescind the respective contract in whole or in part or to extend the delivery period or time until a reasonable time after such events have passed. The same is applicable to the extent that such circumstances apply to any of our suppliers. If in such cases delivery periods or times are mutually agreed upon and expressly designated in writing as "fixed", Customer shall, after granting us a reasonable extension of the delivery time, equally be released from any contractual obligations. We shall on no account and in no way be liable to Customer for any delays or damages during the time period when such circumstances exist.
e. All delivery periods and times agreed upon shall be extended for the time period the Customer is in default of acceptance of the Goods or with its obligations resulting from or arising out of the respective contract Customer entered into with us (including any duty on part of Customer to contribute). In this case we shall be entitled to compensation of any damages thereby incurred by us including the compensation of additional expenditures, if any. Further, the risk of accidental loss, destruction or deterioration of the Goods shall then immediately pass to Customer. If we are in default of delivery, Customer shall grant us in writing (by Registered Letter/Return Receipt requested) a reasonable extension period which shall, however, not be shorter than four (4) weeks from the date on which delivery was to be made. After fruitless elapse of the foregoing grace period for reasons for which we are liable, Customer shall be entitled to rescind the respective purchase agreement.
f. For products exclusively manufactured upon the specific request of and/or to specifications set by Customer, we reserve the right to modify delivery quantities by up to a maximum of ten (10) per cent of the overall order quantity.
g. Unless otherwise agred inwriting with our Customer, the computation and charging of freight cost is based upon the weight and sizes as determined by us. We shall, at our sole discretion, which will not be exercised unreasonably, select the concrete carrier(s) and shipping routes. We shall, however, neither be liable nor responsible for having failed to select the cheapest and speediest way of transportation.
h. All our products are delivered ex factory or ex warehouse in their original packaging only. We will not make any changes to packaging and especially not pack our products on blister or skin cards supplied by third parties. Unless otherwise agreed upon in writing, the cost for packaging materials shall be borne by Customer.
i. The risk of loss and/or deterioration shall pass to Customer upon delivery of the Goods to the carrier performing the shipment/transportation, or, at the latest, upon leaving our warehouse or factory. Transport damages shall be claimed by Customer without delay upon receipt of the respective consignment by giving prompt notice to the carrier concerned. Any return of Goods is subject to our express and prior written approval.
j. Orders on call placed by Customer shall be accepted within the time period stipulated in the order confirmation. If Customer is in default with its respective call for more than one (1) month, we shall have the right to immediately ship to Customer the remaining order quantity.