Terms and Conditions

A. Preamble

§ 1 Scope of Validity – Defensive Clause – Salvatory Clause

(1) These contract conditions are applicable exclusively and are only applicable to entrepreneurs within the meaning of § 310 paragraph 1 German Civil Code (BGB).

(2) For this contractual relationship, as well as all legal relationships and all supplies and performance and also all obligations similar to those resulting from legal transactions in terms of § 311 paragraph 2 and 3 German Civil Code, our General Terms and Conditions as listed in the following are exclusively applicable. Our General Terms and Conditions are also applicable for all future legal relationships, obligations resulting from legal transactions and obligations similar to those resulting from legal transactions.

(3) Any customer terms and conditions that contradict or are at variance from or supplementary to our terms and conditions will not become part of this contract, even if they are the subject matter of an order confirmation and are not expressly contradicted, unless we expressly agree to the validity of these conditions in writing; instead our General Terms and Conditions are applicable. This applies even if we unreservedly deliver to the customer while aware of the customer's varying general terms and conditions.

(4) By accepting our performance and deliveries, the customer acknowledges the binding character of our General Terms and Conditions, with the exception of where there is a deviating prior individual agreement in writing.

(5) Individual contractual agreements, verbal agreements, ancillary agreements and all agreements or declarations must be made in writing to become effective where they deviate from our General Terms and Conditions and are only legally effective if they have been confirmed by us in writing.

(6) Our customers' data will be reasonably saved and processed electronically as far as permissible within the framework of §§ 27 – 32 German Federal Data Protection Act (BDSG).

(7) If individual conditions or parts of these General Terms and Conditions should be ineffective, then this contract will comply with legal provisions. In other respects, the other terms of these General Terms and Conditions remain valid.

B. General Conditions of Sale and Delivery

§ 1 Offer and Conclusion of Contract

(1) Our offers are always subject to confirmation and not binding.

(2) The acceptance of our offers must be declared within four weeks of receipt.

(3) Where an order placed by the customer is to be regarded as an offer in accordance with § 145 German Civil Code, we can accept this within two weeks. Acceptance can be made using an order confirmation or by delivery of the ordered goods.

(4) Cost estimates or offers made by the contractor are provided with no responsibility taken for the completeness and correctness of the information provided.

§ 2 Records and Data Provided

(1) We retain all rights of ownership and copyright to all records and data provided to the customer in connection with placing the order, such as drawings, catalogues, prospectuses and other sales documentation, etc.

(2) Records and data of this kind must not be made accessible to third parties unless we expressly give the customer permission in writing to do so.

(3) Duplication, in particular photocopying, for any purpose other than executing the contract is prohibited.

4) In the event of an offer not being accepted within the time limits set in accordance with B. General Conditions of Sale and Delivery, § 1, item (2.) and (3.), the records and data provided must be returned without delay.

§ 3 Prices – Payment – Delay in Payment – Factoring

(1) Our prices are quoted in EUR. Our list prices are applicable. Providing nothing to the contrary has been agreed in writing, our prices are ex works or warehouse respectively and do not include installation, start-up and assembly costs, or costs for packaging, freight and postage or insurance costs. These will be invoiced separately. VAT is added to the prices at the respective applicable rate.

(2) We reserve the right to make suitable price changes as a consequence of cost increases, in particular on the basis of changes in wages, personnel, material and selling costs for deliveries which take place four months or later after concluding the contract. If the increase is more than 5 %, then the customer is entitled to terminate the contract.

(3) Our prices stated do not include Value Added Tax. Providing nothing to the contrary has been agreed, the purchase price is due as selected by the customer either 30 days after invoicing without discount or 10 days after invoicing with 2% discount on the invoiced amount including Value Added Tax. We reserve the right to agree to any conditions varying from this (prepayment, payment in thirds, etc.). The invoice will be issued on the day of delivery or day the delivery item is made available.

(4) In the case of deliveries abroad, we can require an irrevocable and confirmed letter of credit to be issued in advance, payable by a bank specified by us, or other equivalent securities.

(5) Cheques and payment instructions will only be accepted by us on account of performance. Payment is not considered to have been made until the amount is credited into our account. Drafts will not be accepted as payment.

(6) From the 31st day onwards after receipt of our invoices, the customer is in default without a reminder being required. From this point in time onwards, at the latest once in default, we are entitled to charge default interest amounting to 8 percentage points above the respective base interest rate per annum. The right to assert higher damages caused by default is reserved, providing this can be precisely evidenced.

(7) Per reminder and from the second reminder onwards, we are entitled to charge a EUR 5.00 dunning charge. The contracting parties are at liberty to prove a higher or lower amount of damages.

(8) Discounts will not be granted if the contracting party has defaulted on paying previous invoices. Any allowances granted are not applicable if the customer files for insolvency or is in default.

(9) The contracting party is only entitled to set off rights where his counter-claims have become res judicata or are undisputed. The contracting party is only entitled to exercise a right of retention inasmuch as his counter-claim is based on the same contractual relationship.

(10) We are entitled to assign the claims resulting from our business relationship.

§ 4 Retention of Title

(1) The goods remain our property on whatever legal grounds until all accounts receivable from the business relationship with the customer have been paid, even if the purchase price for specifically designated accounts receivable has been paid. For current invoices, the reserved property rights provide security for our outstanding balance claim.

(2) We are entitled to insure the delivery item at the customer's expense against theft, breakage, fire, water and other damages if the customer does not provide evidence of appropriate insurance.
(3) In the event of the goods delivered by us being compounded, mixed or blended with other goods, we acquire co-ownership of the new item in proportion to the value of our goods to the value of the other compounded, mixed or blended goods. Should the ownership of the goods cease to exist because it has become an integral part of another item, the customer already now grants us co-ownership of the principal item which is proportional to the value of the goods supplied compared to the value of the principal item. Co-ownership is already transferred to us, whereby handover is replaced by agreeing on a safekeeping relationship, on the basis of which the customer keeps the principal item safe for us at his own expense. Upon payment of the accounts receivables, the co-ownership thus granted is transferred to the customer.

(4) The customer is permitted to sell on the goods in an orderly business transaction during the course of his business operations. We can revoke this authorisation in the event of defaulting in payment, at the latest when the customer is in a crisis, i.e. can no longer pay or upon applying to open insolvency proceedings. This authorisation is not applicable if the customer excludes assigning us the accounts receivables from selling the goods. The customer is not entitled to dispose of the reserved goods in other ways.

(5) The customer's accounts receivables from selling on the reserved goods are already now assigned to us to secure all of our accounts receivables from the business relationship.

(6) The customer is entitled to collect this account receivable, however is not entitled to assign it to a third party. We can revoke this authorisation in the event of defaulting in payment, at the latest when the customer is in a crisis, i.e. can no longer pay or upon applying to open insolvency proceedings. On demand, the customer undertakes to inform the third party customer of the assignment for payment to be made to us.

(7) On demand by the customer, we undertake to release the accounts receivables due to us to the extent that the realisable value of the accounts receivables, taking the costs for administration and utilisation into account, exceeds 110 % of the secured accounts receivables.

(8) From the start of delay in payment, we are entitled to withdraw from the contract.

(9) In the event of conduct contrary to contract, in particular in the case of a delay in payment, we are entitled after issuing an appropriate reminder to demand the return of the goods and the customer undertakes to return them. Neither the demand to return the goods nor accepting return of the good constitutes withdrawing from the contract.

(10) If we are entitled to return, then the customer or an authorised representative must give us the opportunity to draw up an inventory of the available reserved goods.

(11) In the event of a levy of attachment or other intervention by third parties, the customer must inform us immediately in writing. The third party must immediately be informed about our rights. Insofar as the third party is not in a position to reimburse the costs of a procedure according to §771 German Code of Civil Procedure (ZPO), the customer is liable for this, providing he culpably omitted to issue the designated notifications.

(12) To assert the rights from the retention of title, it is not necessary to withdraw from the contract.

§ 5 Delivery and Performance Periods

(1) Our delivery period is calculated from the date on our order confirmation.

(2) All delivery due dates are subject to us receiving punctual and correct deliveries.

(3) In any case, the start of and compliance with the delivery period presumes final clarification of all technical details, the receipt of all documentation to be provided by the buyer, all necessary permits and plans, compliance with the agreed payment conditions and other obligations as well as agreement on all technical questions, the clarification of which the parties agreed that conclusion of the contract was subject to.

(4) If these conditions are not met, then the delivery period extends for the duration of the delay plus an appropriate lead time. This does not apply if the delay is our responsibility.

(5) Delivery or performance delays due to force majeure, e.g. mobilisation, war, insurrection, terrorist attacks or similar events which make it significantly more difficult or impossible for us to deliver, such as operational disturbances, strikes or lock-outs or the malfunction of important production facilities/machines, delays in delivery of important raw materials and construction products, delays in transport, official directives, result in an extension of the delivery period for the duration of the delay plus an appropriate lead time or entitle us to withdraw from the part of the contract not fulfilled yet unless we did not immediately inform the customer about the lack of availability and immediately reimburse the customer for any counter-performance already performed. The aforementioned only applies providing we are not responsible for this occurrence. This also applies if the circumstances described occur at our suppliers or their subcontractors.

• In particular with large orders, we can make partial deliveries to an extent which the customer can reasonably be expected to accept.
• In the event of exceeding the delivery period, the customer is entitled to withdraw from the contract if he has unsuccessfully set a deadline of at least 15 working days or setting a deadline is unnecessary.

• Customers' claims for damages due to delay in performance in accordance with § 280 paragraph 2 German Civil Code in connection with § 286 German Civil Code are limited to cases of gross negligence in accordance with B. General Conditions of Sale and Delivery, § 8, providing punctual delivery does not constitute a essential contractual obligation in the individual case.

§ 6 Passing of Risk

(1) Risk is passed to the buyer at the same time as the goods are passed to the buyer or his representative. Otherwise, as soon as the consignment has been handed over to the person executing the transport (the forwarding agent, the haulier or any other person designated to execute the transport). This is not applicable in the event of us managing the transport.

(2) Dispatch route and method are to be left to our discretion, unless otherwise agreed.

(3) If dispatch is delayed as a result of circumstances which the customer is responsible for, then the risk is passed to the customer from the day on which he is notified of readiness to deliver.

(4) On request by the customer, we will take out transport insurance at his expense.

(5) The above mentioned regulations also apply for partial deliveries.

§ 7 Material Defects

(1) For defects caused by bad set-up, faulty installation, inadequate maintenance, faulty or negligent handling or storage, improper repairs not carried out by us, changes made without our written agreement, natural wear, excessive use, unsuitable conditions of use and equipment as well as chemical, electrochemical or electrical influences we are not responsible for, as well as weather or other natural influences, any warranty is not applicable, providing these circumstances were not without impact on the appearance of a material defect.

(2) During manufacture, processing or reworking, we do not accept any liability for the characteristics of parts which the customer sends to us when subjected to heat treatment and during processing. If this material becomes defective here, then we must be reimbursed for any costs we have already incurred during processing.

(3) Warranty claims made by the customer presume that he has correctly fulfilled his due examination and objection obligations in accordance with §§ 377 German Commercial Code (HGB). Obvious defects must be complained about without delay after receiving the goods. Defects which are not obvious must be complained about without delay as soon as they have been noticed. The affected parts are to be sent to us if we request for them to be sent.

(4) If the requirement to examine and make a complaint in respect of any defects immediately upon receipt of the goods is violated, then the goods are considered to be approved with regards to the respective defect.

(5) If the complaint is unjustified, then we are entitled to demand that the customer compensate us for any costs incurred.

(6) The period of limitation is 12 months. This does not apply if the law in accordance with §§ 438 paragraph 1 No. 2 (in relation to buildings and things that have been used for a building), § 479 paragraph 1 (recourse claims) and § 634a paragraph 1 No. 2 (building defects) German Civil Code stipulates longer time limits, and also in cases of injury to life, limb or health, of intentional or grossly negligent breach of duty on our part and in the event of malicious concealment of a defect. Legal provisions for suspension of the statute of limitations, suspension and restarting of time limits remain unaffected by this.

(7) If the purchased item is defective, then we have the right to decide whether we remedy the defect as supplementary performance or deliver an item without any defects.

(8) If the customer unsuccessfully sets us a suitable time limit for supplementary performance, or if the law stipulates that it is not necessary to set a time limit, or if we refuse supplementary performance, or if this has failed or if the type of supplementary performance selected by us can not be reasonably expected by the customer, or if it is not possible to remedy the defect within a suitable time period, then the customer is limited to the right to reduce the remuneration (reduction of the purchase price) or to withdraw from the contract. The right to damages in accordance § 437 No. 3 German Civil Code is ruled out, providing it is not due to the infringement of material contractual obligations (cardinal obligations).

§ 8 Overall Liability Clause

(1) This term is applicable in all events of our liability towards our customers for absolutely any legal reason, providing not regulated otherwise in these General Terms and Conditions or in other agreements.

(2) Liability on our part for ordinarily negligent breach of duty is ruled out, providing these are not material contractual obligations (cardinal obligations), concern damages from injury to life, limb or health or guarantee or claims under the Product Liability Act are affected. In these cases liability is not ruled out or limited. The same applies to breach of duty by our vicarious agents and legal representatives.

(3) However, if we are liable in accordance with § 8, section (1.) by reason of ordinary negligence due to infringement of material contractual obligations, then damages are limited to contract-typical damages foreseeable at the time of concluding the contract and not indirect damages.

(4) This regulation does not apply in the event of malicious concealment of a defect or when providing a guarantee of quality.

(5) Liability for damage that did not occur to the delivery item itself is ruled out as far as legislation and statute will allow. This is particularly applicable for pecuniary losses and consequential damage.

C. Final Provisions

Application of the United Nations Convention on Contracts for the International Sale of Goods dated 11.04.1980 (CISG) is ruled out.