General terms of sale and delivery. The following conditions apply exclusively for companies

Transcription

1 General terms of sale and delivery The following conditions apply exclusively for companies 1. General information 1.1 Our deliveries and services are provided exclusively on the basis of these general terms of sale and delivery. These are an integral part of all concluded contracts and also apply for all future business relationships, even if they are not expressly agreed upon once again. 1.2 When an order is issued, but no later than the acceptance of the delivery or service, these general terms of sale and delivery are acknowledged and accepted by the customer. 1.3 Other terms and conditions or confirmations to the contrary of the customer are nonbinding for us, even if we have not expressly objected to them. They require our express written consent to be legally effective. 1.4 Our terms of sale also apply when we make a delivery to the customer without reservations when we have knowledge of conflicting terms or terms deviating from our terms of sale which were created by the customer. 1.5 Additions, modifications or side agreements must have our written consent to be effective. This also applies for the revocation of the requirement of written form. 1.6 Only the German version of our general terms of sale and delivery is legally binding.

2 2. Quote and conclusion of the contract 2.1 Catalogs, advertising brochures, price lists, cost estimates and quotes are non-binding and subject to alteration. All documents such as figures, sketches, weight specifications, etc. regarding these are only approximates provided they are not expressly declared to be binding. We reserve the right of ownership and copyright for catalogs, sketches, cost estimates and other documents; these may not be made accessible to other parties. When requested, sketches and all types of documents must be returned, particularly if a sale is not made. 2.2 The contract does not become valid until an order confirmation has been made in writing and according to its content or until the delivery has been accepted by the customer. If no written confirmation is made, our delivery slips or invoices count as order confirmation. 2.3 Even after sending the order confirmation, we reserve the right to make modifications to the sketches and descriptions supplied with our quotes and order confirmations which are caused by manufacturing considerations or improvements, experiences or progress in technology, provided these are reasonable for the customer while taking into account our interests in the modification. This same applies for differences in weight and dimensions common in the industry. 2.4 The customer is liable for the completeness and correctness of submitted dimensions and for the correctness of design drawings and similar documents provided by the customer as well as other information that has an influence on the suitability of the elements ordered for the intended use. The customer is also liable for ensuring that the use of these

3 documents does not violate patent or other property rights of third parties. In such cases, the customers must release us from all claims for damages by third parties upon our first request. We are not obligated to check whether property rights of third parties are violated by our use of documents provided to us. 2.5 The customer is responsible for obtaining official permits, especially those granted by the construction supervision authority. 3. Delivery 3.1 The delivery times specified in order confirmations are non-binding approximates. They are only binding when we expressly declare them to be binding. 3.2 The delivery period begins with the date of the written order confirmation; when inquiries are necessary, it does not begin until all points have been clarified. If installments have been arranged, the delivery period does not begin until the first payment has been received. 3.3 The delivery period is considered to have been adhered to when the delivery item has left our plant before the period has expired or we have reported to the customer that we are ready to ship. 3.4 In justified special cases, particularly for operational reasons, we are authorized to make partial deliveries or provide partial performance after previous notification and to invoice these separately. 3.5 Delays in deliveries and performance of services due to acts of nature beyond control or due to other events on which we have no influence and which demonstrably have

4 significant influence on the completion or delivery of the delivery item this includes strikes, lock-outs, official directives, shortage of materials, non-availability or nondeliverability of goods, etc. are not our responsibility in the event of binding deadlines and appointments, even when we are already delayed; this also applies if a preliminary supplier is the cause of delays. We will report the beginning and end of such hindrances to the customer without delay. In the event of temporary hindrances, we are authorized to postpone the deliveries or performance of services by the length of the hindrance plus an appropriate lead time. If delivery or performance of services becomes impossible, we have the right to withdraw from the contract regarding the non-yet delivered item or performance either wholly or in part. In such cases, the customer will also be immediately informed about the non-availability of service and any service in return already performed will be reimbursed without delay. The customer can request us to declare whether we will withdraw or deliver within a suitable period of time. 3.6 Our deliveries are subject to proper and timely delivery by our suppliers in all cases. The reservation of delivery by our suppliers applies providing that we have covered our own supply needs on-time and/or we are not the cause for late deliveries by our suppliers. 3.7 When confirmed binding deadlines or appointments are not adhered to, the customer, after unsuccessful definition of an appropriate extension, is authorized to withdraw from the contract. A withdrawal is excluded if the customer is solely or largely responsible for the non-adherence, or if the non-adherence to confirmed binding deadlines or appointments which is not our responsibility occurs at a time at which the customer is in default of acceptance. An additional liability for damages is determined according to para. 9 of these general terms of sale and delivery.

5 3.8 When the customer is in default of acceptance, after unsuccessful definition of an appropriate extension, we are authorized to demand compensation in lieu of performance in the amount of 30% of the agreed-upon order amount without prejudice to the possibility of proving greater damages have incurred. The customer reserves the right to establish that either no loss had been incurred or the incurred loss was significantly lower. 4. Shipping and transfer of risk 4.1 The place of execution for the delivery is our warehouse when the delivery is from our warehouse; otherwise it is the registered office of the respective supplier. 4.2 Shipping is performed at the customer s risk, and this is also the case when partial deliveries are made or we have taken on other services, such as providing shipping costs or transportation. 4.3 If not specifically indicated, packaging as well as the choice of transport route and means of transport is done at the best discretion. Acceptance of the products from us without complaint by the railroad, post office, carrier or other transport company counts as the confirmation of proper condition of packaging for dispatch and rules out any claims against us regarding improper packaging or loading for damages or loss occurring during transport, provided we do not have mandatory liability due to intent or gross negligence. 4.4 The risk of accidental loss or deterioration of the goods passes to the customer at the time of handover of the goods to the carrier, the railroad or other freight carrier, but at the latest when they leave our warehouse, or in the event that our supplier directly delivers to the customer for example also with FOB and CIF transaction.

6 4.5 Insurance of the delivery against transport damages and other risks is only concluded at the express wish and cost of the purchaser. 4.6 Goods accepted before shipping are considered to be delivered according to the agreed-upon conditions. 4.7 If shipping or acceptance delayed due to the wish or debts of the customer, the risk of accidental loss or deterioration is passed to the customer at the time that we inform the customer of readiness for shipping or acceptance either verbally or in writing. In this case, beginning a month after displaying readiness for shipping, we are authorized to invoice additional costs to the customer. 4.8 If the customer delays acceptance, we can make use of our right according to para. 3.8 or dispose of the delivery item and deliver a similar delivery item in its place within an appropriate period of time in accordance with the contract condition. 5. Prices 5.1 Provided no other agreement has been made, installation of the delivery item is not included in the price. If installation and/or repairs have been upon, the price is calculated according to the amount of hours worked at the standard hourly rate at the time of the installation or repair work. 5.2 Our prices are strictly net ex works plus the legally applicable sales tax, if no deviating agreements have been made.

7 5.3 Subsequently arranged changes to the order entitle us to calculate additional costs resulting from these. 5.4 Prices arranged when the conclusion of the contract are based on cost factors applicable at the time, including material prices, wages, energy, taxes, etc. We are bound to our prices for 4 weeks. If the agreed-upon delivery date is more than 4 weeks after the conclusion of the contract, we are entitled to correct the prices provided that the above-mentioned cost factors change. 6. Terms of payment 6.1 Unless other agreements are made, payment is due when the invoice is received and is to be made (strictly net) within 10 days after receipt of the invoice. Special agreements always need to be made in writing by us. 6.2 In case of delay of payment which last longer than the deadline name in para. 6.1, we are entitled to demand interest in the amount of the interest charged by our commercial bank for business loans, but at least interest in the amount of eight percept points above the currently applicable base rate. The customer reserves the right to establish that either no loss had been incurred or the incurred loss was significantly lower. We are at liberty to enforce a claim for progressing damage caused by delayed payment 6.3 Checks and bills of exchange shall only be accepted on account of performance. If we, as an exception, declare our acceptance of payment with bills of exchange, we only accept discountable and properly taxed bills of exchange according to previous written agreement. The costs of discounting and collection are carried by the customers. These costs are due immediately. We do not assume liability for timely presentation, notification and return of a bill of exchange.

8 6.4 All our claims are immediately due for payment when the terms of payment are not adhered to without due cause or we become aware of a significant deterioration in the financial circumstances of the customer after concluding the contract. We are authorized to then only perform pending deliveries and services if advance payment(s) or collateral security(-ies) are made or to reduce or even cancel accepted goods credits in this case. If advance payment(s) or collateral security(-ies) are not made after the expiration of an appropriate extension, we are authorized to withdraw from the contract in whole or in part. In this case, we reserve the right to enforce damage claims for the unnecessary cost and effort, lost profit as well as other damages. 6.5 We are authorized, other provisions to the contrary made by the customer notwithstanding, to charge payments on top of the customer s older debts and will inform the customer of the type of charge. If costs and interest have already accrued, we are entitled to charge the payment firstly on top of the costs, then on the interest and finally on the main service. 6.6 The customer is only entitled to set-offs or withholding, even if complaints or counterclaims are asserted, if counterclaims are ascertained to be legally binding or undisputed. 6.7 Payments to third parties are only accepted when the latter presents the customer a written authority for receiving payments issued by us or a receipt issued by us. 7. Retention of title

9 7.1 We hold the title of all goods delivered by us until the customer has settled all claims from the business relationship including future claims from simultaneous contracts or contracts concluded later and from a possible balance on a current account as well as until the customer has released us from any contingent liabilities which we have entered in the interests of the customer. 7.2 If the customer does not perform a due service, or does not do this according to the contract, or is delayed in paying claims, we are entitled, after unsuccessful definition of an appropriate payment deadline, to withdraw from the contract and demand the surrender of goods subject to retention. We are also entitled to demand reimbursement of the losses incurred. 7.3 a) The customer is authorized and entitled, in the framework of proper business operations which does not involve the so-called check-bill-of-exchange-process, to sell the goods subject to retention. If the customer is delayed in making payments arising from the business relationship with us, we can forbid further selling. If the customer defers the sales price for his buyer, he is only entitled to continue selling if he also reserves the title on the goods sold to the buyer. b) The customer now transfers to us all purchase price claims or other claims for compensation including all subsidiary rights he is entitled to from the resale or other sale transactions with his buyer. They serve as collateral to the same extent as do the goods subject to retention. The customer is only entitled and authorized to resell the goods subject to retention or use them in another way when it is ensured that the claims from these are transferred to us, and particularly that no ban on transfers exists in the relationship of the customer to his buyer.

10 c) If the goods subject to retention are sold by the customer together with other goods not supplied by us, the transfer of claims from the sale only applies to the amount of the value of the invoice of the sold goods subject to retention. In the event that goods are sold for which we have a co-ownership share according to para. 7.5, the transfer of the claims applies in the amount of the value of the co-ownership share. If the transferred claim is incorporated in a running account, the customer now transfers a part of the balance corresponding to the amount of the claim including the corresponding part of the final balance from the current account to us. If intermediate balances are struck and their balance carried forward agreed upon, the claim owed for the next balance according to the previous regulation from the intermediate balance is to be treated as if transferred to us. d) The customer is entitled to the claims transferred to us until our revocation of the collection. We may only make use of this right to revocation if the customer properly fulfills its obligations to pay arising from the business relationship with us and if no conditions are known which significantly negatively affect the credit standing of the customer. If the pre-requisites for the execution of the right of revocation exist, we can demand that the customer transfer us any possible rights to recover possession from his buyer or notify us of the transferred claims and their debtors, that he provide all information necessary for the collection of these claims, hand over all applicable documents to us and report the transfer to the debtor. In addition, we are also authorized to report the transfer to the debtor. 7.4 The customer is entitled to process the goods subject to retention in proper business transactions as long as he is not delayed in payment. The processing or modification of the goods subject to retention is performed for us as the manufacturer in terms of 950 BGB (German Civil Code) without obligating us to anything. The processed or modified goods are considered to be goods subject to retention in terms of para. 7.1.

11 When the customer processes the goods subject to retention with objects not belonging to us, we acquire the co-ownership share of the new goods in relation of the value of the goods subject to retention to the amount of the values of the other objects used; the point of time of the processing is decisive here. If the goods subject to retention are mixed, blended or connected with other object and our title of the goods subject to retention therefore expires, the customer now transfers us the rights of title owed to him for the mixed or blended stock or the homogenous object in relation of the value of the goods subject to retention to the sum of the values of the other mixed, blended or connected objects; the point of time of the event is decisive here. The customer also detains the objects in our co-ownership for us according to the previous regulation free of charge. The provisions for the goods subject to retention of entire para. 7 apply to the co-ownership shares arising in accordance with this para On our request, the customer must provide us information about the whereabouts of the goods subject to retention and the claims arising from the resale or other trade at any time. 7.6 If the value of the collateral held by us exceeds the claims by more than 10%, we are obligated to release collateral of our choice when requested by the customer. 7.7 Should the retention of title according to the previous conditions be ineffective in accordance with the laws of the country where the goods subject to retention are located, instead of the collateral given, the collateral which most closely resembles that

12 specified by the country s law is considered to be agreed upon. If, in this case, the customer must take certain actions, the customer is obligated to take these actions on our request. 7.8 The customer must handle the goods subject to retention carefully and keep them safe as well as perform all common and required inspection, maintenance and conservation work at his own cost. The customer may neither pawn nor pledge the goods subject to retention as collateral during the length of the retention of title. Third party access to the goods subject to retention, e.g. seizure or confiscation, as well as damages or destruction must be immediately reported to us in writing. 7.9 We are entitled to insure the goods subject to retention against fire, water and other damages at the customer s costs, provided has not proved that he has insured them himself. 8. Warranty 8.1 The customer must inspect the received goods for damage immediately after acceptance. Detectable shortcomings of the product, incorrect or incomplete deliveries, deviations in amounts or dimensions as well as transport and packaging damages must be noted on the waybill or delivery slip and reported to us in writing immediately, but no later than eight days after delivery of the goods. If the customer does not report any defects within this period of time, the goods are considered to be approved to be free of faults and in accordance with the contract. 8.2 Defects that cannot be discovered even with careful inspection during this time period are to be reported to us in writing immediately after they are discovered. The same

13 applies for defects arising during the warranty period. If a defect is not reported to us on time, all warranty claims become invalid. 8.3 If our operating or maintenance instructions are not followed, changes are made to the products, parts are replaced or consumption items are used which do not correspond to the original specification, the warranty becomes invalid if the customer does not refute a substantiated claim that one of these conditions caused the defect. 8.4 We do not assume liability for normal wear and tear, nor for changes to the state or the operational mode due to improper storage or installation. Furthermore, the warranty does not cover defects caused by construction errors or the choice of unsuitable materials, provided that the customer prescribed the construction or material despite our previous instructions. 8.5 In the case of defects, we have the choice of removing them or delivering fault-free goods. All replaced products and parts are transferred into our possession provided they are not already in our possession. 8.6 If the removal of a defect through rework or replacement fails within an appropriate amount of time, the customer can request a reduction in the sales price regarding the defective product or, if construction work is not the object of the warranty for defects, withdraw from the contract. 8.7 The length of the warranty period is 12 months starting from the delivery date. For deliveries outside of Germany, provided nothing else has been arranged, only a materials warranty applies. Wear parts as well as working materials such as refrigerating agents or oil are also excluded.

14 Necessary replacement parts are initially invoiced and then credited after the defective parts have been sent in and inspected. We will continue to invoice freight and/or transport costs for replacement parts or the system. The pre-requisite for the warranty is successful use of the delivery item according to the recognized rules of technology and its installation by authorized people. Proper maintenance work done twice a year, for which proof must be provided if requested, is also a pre-requisite. 8.8 Only the customer is entitled to make warranty claims against us and these claims cannot be transferred. 9. Liability 9.1 Damage claims from the customer are excluded insofar as they are not due to intentional behavior or gross negligence by ourselves or by our legal representatives or vicarious agents. This does not apply for damage claims concerning injury to life, body or health as well as the violation of contractual rights and obligations (so-called cardinal obligations), in which cases we also assume liability for simple negligence, although this is limited to typical damages for the type of contract and which could reasonably have been foreseen. 9.2 The above-mentioned regulations apply for all damage claims independent of the legal basis. 9.3 Possible liability as a manufacturer in accordance with the German Product Liability Act remains unaffected by the above-mentioned regulations.

15 10. Statute of limitations 10.1 Damage claims made by the customer due to culpable injury to life, body or health or due to behavior or gross negligence by ourselves or by our legal representatives or vicarious agents as well as due to defects which were maliciously concealed, are subject to the statutory limitation periods. The same applies when we have issued a guarantee for the quality of the goods or assume liability according to para The statutory time limits apply for defects with a building or for objects which have been used for a building according to their typical manner of application and caused its defectiveness All other claims made by the customer come under the statute of limitation a year after the delivery date. 11. Export 11.1 In the event of intended export of products delivered by us, the customer is obligated to observe all relevant German and foreign legislation. The customer is responsible for compliance with all export and import control regulations, for his buyer as well, and exempts us from all liability If products exported by us are exported by the customer, our liability for costs of removing defects is limited to an amount of 10% of the net order value. 12. Final clauses

16 12.1 Place of jurisdiction for deliveries and payments (including check and bill of exchange claims) as well as all disputes between the parties is the court responsible for our registered office. However, we reserve the right to take the customer to court in any other legal place of jurisdiction The relationships between the contracting parties are regulated exclusively according to the current law in the Federal Republic of Germany without possibility of recourse to the United Nations Convention concerning contracts for the international sale of goods The customer can without prejudice to the regulation in para. 8.7 only transfer his rights and obligations from this contract to third parties with written permission from us. The transfer of monetary claims remains unaffected by this. This consent does not need to be given, however, if the transfer is done in the framework of an effectively extended retention of title which the customer has agreed upon in the framework of the regulations in previous para Should individual provisions of the previous conditions or parts therefore be invalid, the effectiveness of the remaining conditions is not affected by this. An invalid provision of these conditions will be replaced by a valid provision which most closely resembles the intent and economic effect of the invalid provision.