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General Business Terms (AGB) Status 03/2008

General Business Terms (AGB) Status 03/2008

1. General

The provision of goods and services will take place exclusively on the basis of the present General Business Terms. They will be regarded as agreed to by the latest upon acceptance of our services. Any deviating general business terms will only apply if they are expressly confirmed by us in writing. Ancillary agreements must be confirmed in writing.

2. Prices and payments

2. Prices and payments

Our offers and prices specified in the price lists are not binding, i.e. in the case of an increase of the prime costs we reserve the right to invoice the prices prevalent at the date of the delivery. Where there is no separate agreement, our prices will be ex works, including loading but excluding packaging. The respective VAT rate is not included in the prices and will be charged additionally. For minor orders having an net order value below EURO 80,- a minor-quantity supplement of EURO 15,- will be charged.

Our invoices are payable to our payment office within 8 days after the date of the invoice with 2% discount or net within 30 days after the invoice date. It is only possible to take advantage of the discount if there are no more outstanding claims. Bills of exchange, checks or other promises to pay or claim assignments shall only be regarded as payment if credited to one of our accounts. Costs associated with payment, (bank charges i.a.) will be borne by the Purchaser. The ordering party can only set off uncontested/legally enforceable claims.
Where the ordering party is in arrears with payment for more than one month, we will charge default interest of 8% above the prevalent basic interest rate of the Deutsche Bundesbank (German Federal Bank). We will also have the right to demand payment of other claims from the ordering party or to rescind the contracts with him or to demand advance payment or collateral for goods which are yet to be delivered. Complaints by the party will not entitle them to omit payment.

3. Retention of title

3. Retention of title

Without detriment to the right of rescission stipulated in Item 2 of the present General Business Terms, the goods delivered by us shall not pass to the ordering party before all claims from the business relationship with him have been settled (retention of title). In case of a resale, combination or processing of the goods delivered by us the claim against the supplied party to the resulting work product will replace the retention of title when it expires (extended retention of title). We have the right to also directly demand payment or return of the goods from the supplied third party, with reference to the retention of title. We reserve the right to prohibit the resale of goods subject to the retention of title in individual cases.
The ordering party will not have the right to assign or transfer the title of the goods delivered but not yet paid to third parties as a way of furnishing collateral. We must be immediately informed of any kind of compulsory assignment, confiscation or other orders by third parties. Any compensation for damage incurred by the omission of this information will be borne by the ordering party.

4. Extended retention of title

4. Extended retention of title

The delivery items (goods subject to retention of title) shall remain the property of the supplier for the fulfilment of all claims against the ordering party he is entitled to on the basis of the business relationship. The retention of title also covers the recognized balance where the supplier books claims against the ordering party in current invoices (current account proviso). Where the purchaser of the goods subject to the retention of title places the claim from the resale of the delivery item in a current account relationship existing with the party buying the goods from him, the current account claim is assigned to the amount of the recognized balance; the same shall apply for the causal balance in the event of insolvency of the purchaser of the goods subject to the retention of title.

Should the ordering party resell the goods subject to the retention of title, as a matter of precaution, he is herewith already assigning his future claims against his customers from the resale, together with all ancillary rights including possible balance claims. Subsequent separate declarations are no longer necessary for this. Where the goods subject to the retention of title are resold together with other items and no individual prices were stipulated for the goods subject to the retention of title, the ordering party, giving priority to the supplier over other claims, will assign the fraction of the total price claimed equivalent to the price of the goods subject to the retention of title charged by the supplier.

Should the ordering party not meet his payment duties properly or be in arrears with payment the supplier can demand that the ordering party inform the supplier of the assigned claims and debtors, provide all information necessary for collection, submit the corresponding documents and inform the debtors (third parties) of the assignment.

The ordering party will be authorized to collect the assigned claims from the resale until revocation. Where there is a relevant ground, in particular delay of payment, suspension of payment, instatement of insolvency proceedings (conciliation proceedings, total enforcement), protest or where similar circumstances are given which make the insolvency of the ordering party probable, the supplier will have the right to revoke the collection authorization. In addition, upon prior warning of the discovery of the collateral assignment or use of the assigned claims within an adequate period, the supplier can disclose the assignment of the collateral, use the assigned claims or demand the disclosure of the collateral assignment by the ordering party toward the customer.

The ordering party is permitted to process, reshape or combine the goods subject to the retention of title with other items. The processing, reshaping or combination will be made for the supplier. The ordering party will keep the new item for the supplier with the diligence of
a prudent businessman. The processed, reshaped or combined object will be regarded as
a good subject to the retention of title.

In the case of processing, reshaping or combination of the goods with other goods not belonging to the supplier, the supplier will have a share in the ownership of the item equivalent to the share resulting from the ratio of the value of the processed, reshaped or combined goods subject to the retention of title to the value of the remaining processed goods at the date of the processing, reshaping or combination. Where the ordering party acquires the sole possession of the new article, the supplier will acquire a share in possession in the new object created from the processing, reshaping or combination proportionate to the ratio of the value of the processed, reshaped or combined goods subject to the retention of title to the remaining processed, reshaped or combined goods subject to the retention of title at the date of the processing, reshaping or combination.

In case of a sale of the new item, as a precautionary measure, the ordering party is herewith already assigning his claim against the customer from the resale to the supplier together with all ancillary rights. No further separate declarations are required in this matter. However, the assignment will only be valid to the amount equivalent to that invoiced by the supplier for the processed, reshaped or combined goods subject to the retention of title. The share in the claim assigned to the supplier must be satisfied first. Where the goods subject to the retention of title are combined with real property or chattels, as a matter of precaution, the ordering party will also assign his claim conceded to him as remuneration for the combination together with all ancillary rights to the amount of the ratio of the value of the combined goods subject to the retention of title to the remaining combined goods at the date of the combination to the supplier. No separate declarations are necessary in this matter.

In case of assignments, seizures or other orders or other types of interference by third parties, the ordering party must inform the supplier immediately, so that the supplier can sue according to §771 ZPO. Where the third party is unable to reimburse the supplier for court fees and extrajudicial fees of a lawsuit according to § 771 ZPO, the ordering party will be liable for the loss incurred to the supplier. Where the ordering party violates cardinal contractual duties, especially in the case of delayed payment, the supplier will have the right to issue a warning of revocation of the goods. The

ordering party must then return the goods. The revocation of the goods or assertion of the retention of title or the assignment of the delivery item by the supplier will not constitute a rescission of the agreement unless the supplier expressly declares so in writing.

After issuing a prior warning, the supplier will have the right to use the revoked goods and to satisfy outstanding claims from the proceeds.

The supplier must release the collateral he is entitled to at the ordering party’s request where its value exceeds the claims to be secured by more than 20%.

5. Delivery volumes

5. Delivery volumes

The written order confirmation or invoice is authoritative for our delivery volume. Any ancillary agreements or amendments concerning the delivery volume must be confirmed by us in writing. The ordering party will bear the expenses and risks for any protective measures in the ordering party’s company for products supplied by us which are prescribed by relevant regulations or become necessary due to technical circumstances. This will also apply where we perform instructional training or carry out the operations ourselves.

6. Passing of risk and acceptance of deliveries

6. Passing of risk and acceptance of deliveries

The risk of destruction or deterioration of a consignment shall pass to the ordering party by the latest upon completion of the delivery. This will also apply to partial deliveries. If the ordering party so requests, the supplier will conclude a transport insurance policy at the ordering party’s expense. Goods must be accepted upon delivery (without detriment to the rights from the guarantee regulations), otherwise the ordering party will be in arrears with acceptance. In such a case of delayed acceptance, the supplier will have a right to compensation payment to the equivalent of at least the actual freight and storage costs and in the case of special machines and customized parts manufactured at the ordering party’s request, at least to the amount of the development costs and costs for reuse.

7. Delivery deadlines

7. Delivery deadlines

Unless otherwise expressly agreed, our stipulated delivery deadlines will not be binding. Where a specific delivery period is agreed to, it will commence upon the date of our order confirmation but not before the receipt of any possible documents to be obtained by the ordering party (permits, decontrol declarations etc.).

The delivery deadline will be regarded as having been observed if the delivery item has left the works by its expiry or if readiness for dispatch has been communicated. The delivery deadline will be extended accordingly in cases of unforeseeable events for which we are not responsible (labour disputes, shortage of raw materials, cancellation of suppliers, unrest, war, force majeure). The ordering party has the right to rescind the contract after lapse of the regular or adequately extended delivery deadline if he has conceded us an adequate period of grace with a warning that otherwise the goods will be refused and this period has also lapsed. All further claims by the ordering party, especially to rescission, cancellation of the contract, reduction of the purchase price and compensation of any kind of damage, including damage not caused to the delivery item itself are excluded.

8. Claims for defects/liability

8. Claims for defects/liability

Any claims for defects made by the purchaser presuppose that such claims are made in accordance with the inspection and notification of defect obligations in § 377 HGB (German Civil Code). Any notification of defects must be made in writing.

In the event of defects for goods supplied we are obliged to rectify such defects or to supply goods free of defects (supplementary performance), the choice of which is at our discretion. If we are not prepared to carry out supplementary performance or are not in a position to do so, particularly in the event of any delay beyond a reasonable time caused by us, or if the supplementary performance fails, the purchaser is entitled to withdraw from the contract or to demand a reduction in the purchase price. Supplementary performance shall be considered to have failed after the third attempt, if no other circumstances apply due to the type of issue or any other circumstances. Any claims for damages made by the purchaser can only be enforced to the extent detailed in the regulation at the end of this paragraph. Any parts exchanged become our property.

Any claims made by the purchaser for supplementary performance, as well as any claims made for damages or reimbursement of expenses due to defects, are subject to a limitation period of 12 months after delivery. The above-mentioned stipulations do not apply to any claims resulting from injury to the person, or to any claims made in accordance with the German product liability act, or due to legal defects to any goods supplied by us which are rights in rem of any third party, due to which the issue of the goods supplied by us can be demanded. Furthermore, they do not apply to any limitation period for claims made by our customer which relate to defects to goods supplied about which we maliciously did not inform the customer or where we have been in breach of our obligations deliberately or due to gross negligence. Statutory limitation periods apply for all claim eventualities mentioned in this paragraph.

Defect claims made by the purchaser do not apply in the event of unsuitable or incorrect usage, defective assembly or servicing by the purchaser or by any third party, normal wear, defective or negligent handling, unsuitable operational materials, electro-chemical or electrical influences, as far as such defects cannot be attributed to the supplier. Any sale of used products is not subject to the guarantee stipulations and is thus free from any claims for defects. To the extent that the purchaser is able to enforce any claims for damages which relate to intent or gross negligence (including intent or gross negligence by our vicarious agents or representatives), as well as in the event of breach of any significant contractual conditions, we are liable in accordance with statutory provisions.

Liability is however, limited, apart from in the event of intent, to foreseeable, typical damages, up to a maximum of the value of the order. In addition, we are liable in accordance with any mandatory regulations applicable in the event of culpable injury to the person as well as due to the failure of any property or condition guaranteed by us, or due to any malicious withholding of information by us concerning a defect. Ceteris paribus any claims for damages made by the purchaser, irrespective of their legal basis, including any claims to replacements due to any breach of contractual obligations as well as unauthorised handling, are excluded. This also applies to the personal liability of our employees, representatives and vicarious agents.

9. Information material

9. Information material

The documents provided in connection with our offers such as illustrations, drawings, information on weights and measures and other detailed descriptions will not be binding and will not form the basis of claims for the delivered product .To this extent, we reserve the right to carry out changes on the basis of technical or economic findings. The ordering party must not allow third parties to gain access to the documents provided by us in connection with an offer or for information purposes, especially not to cost estimates.

10. Jurisdiction and place of performance

10. Jurisdiction and place of performance

The place of performance for all supply and service is Sulzbach, and the court of jurisdiction is Frankfurt/Main. The law of the Federal Republic of Germany shall apply exclusively. In case of doubt the German version of all contractual documents shall be authoritative.

 

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