Reservation of Title 10.1 We reserve title and the right of disposal to the delivery items until the Customer has paid in full all of our current and future claims arising from the supply agreement and an active business relationship (secured claims). This includes checks and bills receivables, as well as receivables from current accounts or checking accounts. If in connection with a payment, a liability arising from a bill of exchange is created for us, this reservation of title remains effective until any recourse against us based on such bill of exchange is excluded. Before the aforementioned receivables of us are paid in full, the Customer may use delivered products within the ordinary course of business, unless a prohibition of assignment was or is agreed with the respective third parties for the claims the Customer assigned to us in advance according to Item 10.4. before the aforementioned receivables of us are paid in full, the Customer is also prohibited to pledge or transfer by way of security any delivered products and the Customer’s resellers may only resell delivered products within the ordinary course of business with the provision that the reseller receives payment from its customers and transfers such payments to us without undue delay. The Customer will bear any costs or expenses for interventions.
10.2 In the event of attachments, seizures or other official orders, as well as encroachments of third parties against our property, the Customer is obligated to promptly notify us.
10.3 In the event the Customer is in breach of contract, in particular in the case of payment in arrears, we are entitled to retake possession of the delivery item after reminding the Customer and the Customer is obligated to return the delivery item.
10.4 If we enforce our right to the retention of title or levies attachment against the delivery item, such measure does not represent withdrawal from the agreement, unless the provisions of the German Installment Sales Act [Abzahlungsgesetz] apply.
10.5 The Customer, hereby, assigns all of its claims in the amount of the proportionate amount of the our invoice, including VAT and all ancillary rights, that the Customer may have against its customers or third parties from such resale. The above provision also applies, if the Customer transfers its purchase price claim from the resale into a checking account agreed between the Customer and its customer or a third party. We, hereby, accept this assignment.
10.6 If the delivery item is installed on a real property in terms of a fixture or combined with movables of third parties or processed within the scope of a contract for work and services, the Customer, hereby, assigns its remuneration from such contract for work and services and/or its coownership share created thereby in the amount of the proportionate invoice amount of us, including VAT, for the processed goods subject to the reservation of title. We, hereby, accept this assignment.
10.7 The Customer is hereby authorized to collect the above assigned claims within the ordinary course of business, provided the Customer promptly transfers to us any incoming amounts. The authorization to collect assigned claims terminates, if the Customer defaults on its payments, application for judicial or extrajudicial insolvency proceedings is filed or in the case of a check or bill of exchange protest.
10.8 If delivery items became material components of a real property (fixtures), the Customer undertakes to allow us to deinstall those delivery items that can be removed without material negative effects on the building / structure and to retransfer to our ownership to the delivery items. If the Customer impairs our aforementioned rights, the Customer is obligated to pay us compensation. The Customer bears any incurred deinstallation and other associated cost.
10.9 If the fair market value of existing securities for our benefit exceeds our secured claims by more than 10% solely based on these provisions regarding reservation of title or together with other provided securities, we are obligated to release at its option provided securities accordingly, if the Customer requests the release of such securities.
10.10 We are authorized to insure the delivery item at the Customer’s expense against theft, fire, water and other damages, unless the Customer provides documentation that the customer has taken out the respective insurance policies.
10.11 In the event the Customer is in breach of contract, in particular in the case of payment in arrears, we are entitled to retake possession of the delivery item after reminding the Customer and the Customer is obligated to return the delivery item. If we enforce our right to the retention of title or levies attachment against the delivery item, such measure does not represent withdrawal from the agreement.
10.12 We are entitled to withdraw from the agreement and demand prompt return of the delivery item, if an application for the opening of insolvency proceedings has been filed.
Retention of Title 11.1. Title to all delivered goods remains with the Seller until the Buyer has paid all sums owing to the Seller in connection with the respective Contract and all other obligations of the Buyer towards the Seller arising under or in connection with the respective Contract have been fulfilled. Any processing of the delivered goods by the Buyer takes place on behalf of the Seller without imposing obligations on the Seller. If the delivered goods are processed with other goods not owned by the Seller, the Seller acquires a co-ownership on the newly produced goods pro rata the value of the delivered goods at the time of the processing.
11.2. The Buyer shall be entitled to sell the delivered goods in the usual course of business. Any possible claims resulting from such sale shall herewith be assigned to the Seller in advance and the Buyer shall undertake all necessary publicity requirements for enforceability of such assignment. The Buyer shall provide The Seller with written customer lists upon the Seller’s request. If the Buyer sells any goods co-owned by the Seller, the assignment shall apply in the same volume as this co-ownership. The Seller shall be entitled to collect the assigned sum.
11.3. The Buyer is obliged to appropriately insure the goods still owned by the Seller against all common risks, particularly against fire, burglary or damage caused by water at its own expense, to treat them cautiously and store them properly.
11.4. In case the Buyer is in delay of overdue payment considering a grace period of 10 working days, the Seller shall be entitled to demand restitution of the delivered goods or to collect the delivered goods and to sell them as they are (i.e. including their packing) to any third persons. One or several of these acts shall not be considered as termination of the respective orders and does not relieve the Buyer to effect payment of the invoiced amounts. In case the delivered goods are sold to third parties by the Seller, the Buyer states and guarantees that this will not result in the infringement of any intellectual property rights (e.g. trademark rights with regard to signs, logos and words, etc.) that are imprinted on the respective goods or packaging and waives any rights the Buyer may have against the Seller resulting therefrom.
11.5. The Seller may, at its free discretion, however, also terminate the unpaid order, without limiting any of the Seller’s claims arising out of or in connection with the Buyer’s breach of contract, in particular claims for damages.
