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Terms and Conditions of Sale and Delivery

§ 1 General – Scope: Our terms and conditions of sale apply exclusively; we do not acknowledge any terms and conditions of the buyer which are contradictory to, or which deviate from, our own, unless we agree to them explicitly in writing.

Our terms and conditions of sale apply even in the event that we ship goods to the buyer unconditionally, even though we may be aware of any terms and conditions of the buyer which are contradictory to, or which deviate from, our own. All of the agreements which have been entered into by ourselves and the buyer for the purpose of fulfilling this contract are set froth in writing herein. Our terms and conditions of sale apply to business enterprises only in the spirit of paragraph 310 of the BGB (German civil law).

§ 2 Offers – Quotation Documents: If the order can be classified as an offer in accordance with paragraph 145 of the BGB, we have the right to accept it within a period of 4 weeks.

We retain all rights of ownership and copyrights to diagrams, drawings, calculations and other documentation. This also applies to written documents which are designated “confidential”. The buyer must obtain written consent from ourselves before forwarding documentation to any third party or parties.

§ 3 Prices – Terms of Payment – Deductions: Insofar as nothing to the contrary is specified in the order confirmation, our prices are quoted “ex works” excluding packaging; packaging is invoiced as a separate item. Our prices do not include legally applicable value added tax; VAT is included in the invoice as a separate item in accordance with the legally specified rate on the date the invoice is issued.

The deduction of cash discounts is subject to special written agreement. Insofar as nothing to the contrary is specified in the order confirmation, the purchase price is due and payable (without deduction) within 30 days of the invoice date. If the buyer is in default of payment, we are entitled to claim interest on arrears at an annual rate of 5% higher than the base rate. We are also entitled to claim damages caused by delay which exceed this amount, if we are able to substantiate that such damages have been incurred. However, the buyer is entitled to provide us with proof that we have incurred no damage, or significantly less damage, as a result of default of payment. Checks and/or bills of exchange are only deemed valid payment after redemption. Bills of exchange can only be accepted after obtaining written agreement from ourselves. In the event that bills of exchange are accepted, bank discount charges and collection fees will be invoiced. These are immediately due and payable in cash.

The buyer is only entitled to set-off rights if his counterclaims are legally binding, undisputed or have been acknowledged by ourselves. Furthermore, the buyer is only entitled to exercise any rights of retention to the extent that his counterclaim is based upon the same contractual relationship. Insofar as supplied goods are defective, the buyer is only entitled to withhold that portion of the invoice amount which is allocated to the defective parts or shipment. The remainder of the invoice amount is due and payable within the agreed upon term of payment. A new term of payment, identical in length to the originally agreed upon term of payment, begins for the withheld portion of the payment after the defect has been eliminated.

§ 4 Delivery: The term of delivery begins when the order confirmation is dispatched, but in any case not before the buyer has submitted any required documents, agreements, approvals or clearances, and not before receipt of any agreed upon down payment.

The term of delivery is deemed adhered to if the buyer has been notified of readiness of shipment or the goods in question have left the factory before it has expired.

The term of delivery is extended in the event of measures resulting from labor disputes, in particular strikes and lockouts, as well as in the event of unforeseen hindrances, which are beyond our control, for example work stoppages and delayed receipt of essential materials, insofar as such hindrances have a verifiably significant influence on being able to supply the goods in question. This also applies in the event that our suppliers or sub-suppliers are affected by any of the above mentioned circumstances. The term of delivery is extended by an amount equal to the duration of such measures and hindrances.

Even in the event that they occur during an already existing delay, we cannot be held responsible for any of the above mentioned circumstances. We undertake to notify the buyer as quickly as possible of the beginning and the end of hindrances of this sort in cases which are deemed important.

Partial shipments within the terms of delivery specified by ourselves are permissible, insofar as this does not result in any disadvantages related to use of the supplied goods.

§ 5 Scope of Delivery: The scope of delivery is specified on our written order confirmation.

The ordered goods are subject to engineering and/or dimensional changes which result from technological improvement or legal requirements insofar as the goods in question are not significantly modified and the changes are not unreasonable for the buyer.

§ 6 Packaging and Shipping: Packaging becomes the property of the buyer and is invoiced by ourselves.

Packaging and shipping charges are included in the invoice as separate items. The shipping mode is selected to the best of the seller’s judgment.

§ 7 Cancellation Costs: If the buyer withdraws from an already issued order without justification, we are entitled to insist upon fulfillment of the contract or to demand compensation for damages. In the event that we choose to demand compensation for damages, we are entitled to claim lump sum compensation amounting to 10% of the sales price, notwithstanding our option to claim larger amounts in the event that actual damages are greater than 10% of the sales price. The buyer reserves his right to prove lesser damages.

§ 8 Acceptance and Transfer of Risk: In the event that machinery is supplied to the buyer, he is entitled to examine the ordered goods at the seller’s facility within 14 days after receipt of notification of readiness to ship, or any other notification of completion. The buyer is obligated to accept the goods within the same period of time, unless he is temporarily impeded from issuing such acceptance for reasons beyond his control.

If the buyer is in default of acceptance or violates any other obligations to cooperate, we are entitled to claim compensation for damages incurred by ourselves as a result, including any additional expenses. The seller reserves his right to assert further claims as well.

In particular, we are entitled to extend the buyer’s deadline by 14 days, after whose expiration we are entitled to withdraw from the contract or claim compensation for damages due to non-fulfillment. There is no need to extend the buyer’s deadline if he earnestly or conclusively refuses acceptance, or if he is obviously unable to pay the purchase price, even within this period of time.

Risk is transferred to the buyer as soon as the goods are handed over to the freight forwarder or leave our factory or warehouse, or upon receipt of notification of readiness for shipment in the event that shipment or acceptance is delayed for reasons beyond our control. If the buyer declares that he will not accept the goods, the risk of accidental loss or deterioration of the goods is transferred to the buyer at the point in time of refusal.

 

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§ 9 Warranty: We assume liability for defective shipped goods as follows: The buyer is entitled to demand the elimination of defects (rectification) for a period of 12 months after acceptance of the supplied goods. Insofar as the supplied goods are defective, the buyer must grant the seller three attempts at rectification. If we are unable to eliminate defects which are covered by our warrantee obligation, or if further attempts at rectification would be unreasonable for the buyer, the buyer is entitled to demand cancellation of the contract or reduction of the purchase price instead of rectification.

Rectification is restricted to rectification measures carried out at the place of delivery, i.e. if the buyer has moved the goods to another location, he is required to return them to the place of delivery at his own expense for the execution of rectification.

Natural wear and tear is excluded from the warrantee in any case. The buyer must notify us in writing of obvious material defects (as well as transport damage if the goods have been transported with our own vehicles), incorrect shipment and quantity deviations without delay, and in any event no later than 14 days after receipt of the goods.

If the goods have not been transported with our own vehicles, compensation for transport damages must be claimed directly from the freight forwarder within the specifically applicable deadlines.

We are only liable for further claims and rights in the event of malicious intent or gross negligence. Liability is excluded in all other cases. In particular, we are not liable for any damages which have not been sustained by the supplied goods themselves. Compulsory liability law remains unaffected.

§ 10 Total Liability: Any liability which goes beyond that specified in paragraph 9 is excluded, regardless of the legal nature of the asserted claim, unless the damages in question were caused intentionally or as the result of gross negligence. This applies in particular to claims for the compensation of damages due to culpa in contrahendo, claims for the compensation of damages due to breach of duty (paragraph 280 ff of the BGB) or due to tortious claims in accordance with paragraph 823 of the BGB. Liability is not excluded insofar as it is compulsory due to legal regulations regarding loss of life, bodily injury or impairment of health, or in accordance with the stipulations set forth in product liability law.

Insofar as claims for damage are restricted or excluded vis-à-vis ourselves, this also applies with regard to the personal liability for damages of all of our employees, representatives and agents.

§ 11 Retention of Title, Security: We retain title to all supplied goods until payment has been effected in full. In the event that the buyer conducts himself contrary to the terms of the contract, in particular in the event of default of payment, we are entitled to revoke the goods after issuing a reminder. The buyer is obligated to surrender the goods to us.

Assertion of retention of title and the seizure of supplied goods by ourselves is not deemed withdrawal from the contract, insofar as the stipulations set forth by consumer credit law do not apply or we issue an explicit written declaration to the contrary.

The buyer is entitled to resell the supplied goods in the ordinary course of business; however, he assigns to us all claims in an amount equal to the purchase price agreed upon by ourselves and the buyer (including value added tax) already at this point in time, which accrue to the buyer as a result of resale, regardless of whether the goods are resold after or without further processing.

The buyer is empowered to collect these claims after their assignment. Our authority to collect these claims ourselves remains unaffected by this, although we undertake not to collect such claims as long as the buyer fulfills his payment obligations and is not in default of payment. However, if this is not the case, we are entitled to demand that the buyer informs us regarding the assigned claims and the respective debtors, provides us with the details necessary for collection, hands over all pertinent documentation and notifies the debtors (third parties) of such assignment.

Processing or transformation of the goods by the buyer is always undertaken on our behalf. If the supplied goods are processed with other objects which do not belong to us, we acquire co-ownership of the new goods proportionate to the value of the supplied goods in relation to that of the other, processed goods, at the time of processing.

If the supplied goods are inseparably combined with other objects which do not belong to us, we acquire co-ownership of the new goods proportionate to the value of the supplied goods in relation to that of the other, combined goods. The buyer shall assure safekeeping of our co-ownership.

The buyer is not permitted to deform the supplied goods or assign them as security for a debt. In the event of pledging or confiscation, as well as any other third party disposal, the buyer must notify us without delay and make all information and documentation required for safeguarding our rights available to us. Executory officers and third parties must be made aware of our ownership. Insofar as the third party is unable to reimburse us for the court costs and out-of-court costs resulting from legal action in accordance with paragraph 771 of the ZPO (German code of civil procedure), the buyer is liable for resulting losses incurred by ourselves.

We undertake to release the securities placed at our disposal upon request of the buyer insofar as they exceed the value of the claims to be secured by more than 20%, and insofar as the claims have not yet been settled. In order to secure our claims vis-à-vis himself, the buyer also assigns to us claims against third parties which result from combination of the purchased goods with a plot of land.

The buyer undertakes to treat the supplied goods with due care; in particular he is required to adequately insure them for new replacement value at his own expense against damage due to fire and water, and against theft. The buyer must execute maintenance work and/or inspections punctually at his own expense insofar as they are required.

§ 12 Court of Jurisdiction and Place of Fulfillment: Insofar as the buyer is a merchant who has been entered as such to the commercial register, any disputes arising hereunder shall be settled before a competent court of law which presides over our place of business; however, we are entitled to take legal action against the buyer at his own place of business as well. Insofar as nothing to the contrary is specified in the order confirmation, the place of fulfillment is our place of business.

German law applies exclusively to the exclusion of laws governing the international sale of movable goods, even if the buyer’s place of business is outside of Germany.

§ 13 Miscellaneous: No transfer of the rights and obligations of the buyer which result from the contract entered into with ourselves is permissible without our written consent.

In the event that any of the stipulations included in this contract is or should become invalid, this shall have no effect on the validity of any other stipulations.