GENERAL CONDITIONS OF SALE

General Terms and Conditions of Sale


I. General Information/Scope of Applicability

1.

The following Terms and Conditions of Sale will only apply to contractors as defined in § 310 par. 1 of the German Civil Code (BGB).

2.

The following Terms and Conditions of Sale will apply to all agreements entered into between the Client and us for the delivery of goods. Said Terms and Conditions of Sale will also apply to all future trade relations, even in the absence of an additional express agreement to the same.

3.

Our Terms and Conditions of Sale will apply exclusively; we will not accept any terms and conditions that conflict with the same or any terms and conditions of the Client that deviate from our Terms and Conditions of Sale unless we have expressly consented to their applicability in writing. Our Terms and Conditions of Sale will also apply if we perform a delivery to the Client unconditionally despite our awareness of terms and conditions that conflict with our Terms and Conditions of Sale or terms and conditions of the Client that deviate from our Terms and Conditions of Sale.

4.

All agreements entered into between us and the Client in connection with the Purchase Agreement(s) are stipulated in writing in the Purchase Agreement and these Terms and Conditions.

II. Offers/Offer Documents/Changes to Subject Matter of Agreement

1.

Our offers are subject to change without notice and are not binding unless we have expressly designated them as binding.

2.

We reserve all proprietary rights and copyrights to illustrations, drawings, calculations, and other documents. This also applies to those written documents designated as confidential. The Client will not disclose such documents to any third party without obtaining our express written consent in advance.

3.

We reserve the right to make changes to the subject matter of the agreement to the extent permissible by law. In particular, we reserve the right to make changes in construction and form during the time of delivery for purposes of effecting technological advances.

Should contract deliverables be promised whose performance is contingent on obtaining any official permits, changes may be made for purposes of obtaining such permits. Furthermore, no changes made to orders after entry into the agreement will be considered unless the Client assumes all additional costs incurred because of such changes and unless the Client expressly grants a sufficient extension of the time of delivery.

III. Subject Matter of Agreement/Agreement on Quality

1.

The agreed quality will be primarily decisive in terms of the subject matter of the agreement. Therefore, with respect to the agreed quality, we make reference to our technical specifications and the detailed product description and the Agreement on Quality, both of which are attached to the agreement.

2.

The subject matter of the agreement is exclusively the product sold with the qualities, features, and intended use indicated in the product description. Any different or additional qualities or features, or any intended use exceeding that indicated in the product description, will only be deemed to have been agreed upon with our express written confirmation.

IV. Reservation of Title

1.

We reserve title to the subject matter of the agreement until all payments due under the Sales Agreement have been received. Should the Client conduct himself in a manner that violates the agreement, and particularly in the event of default in payment, we will have the right to retake the subject matter of the agreement. Our retaking of the subject matter of the agreement will constitute cancellation of the agreement. After retaking the subject matter of the agreement, we are authorized to credit any proceeds from the disposal of the same against the Client's obligations, less any reasonable costs of disposal.

2.

The Client must handle the subject matter of the agreement with due care. In particular, the Client must, at his own expense, sufficiently insure the subject matter of the agreement for its original value against any and all losses resulting from fire, water, or theft. Should any maintenance or inspection prove necessary, the Client must perform such work at his own expense and in good time.

3.

In the event of a pledge or other interference by any third party, the Client must inform us in writing immediately so that we can file an action pursuant to § 771 of the German Code of Civil Procedure (ZPO). Should the third party be unable to reimburse to us the court and out-of-court costs of the action pursuant to § 771 of the German Code of Civil Procedure (ZPO), the Client will be liable for the respective loss incurred by us.

4.

The Client has the right to resell the subject matter of the agreement in the ordinary course of business. However, the Client hereby assigns to us all claims (in the value of the final invoice amount of our claim, including VAT) accruing to the Client against its customers or any third party as a result of the resale, regardless of whether the subject matter of the agreement has been resold without processing or following the same. The Client will remain authorized to collect said claim, even subsequent to the assignment. However, this will not affect our authority to collect the claim ourselves. Nevertheless, we agree not to collect the claim as long as the Client fulfils his payment obligations using the proceeds collected, refrains from defaulting on its payments, and in particular as long as no petition to initiate composition or insolvency proceedings has been filed and payments have not been discontinued. Otherwise, however, we may demand that the Client inform us of all claims assigned and the identity of the respective debtors, provide us with all information necessary for purposes of collection, deliver all associated documents to us, and inform the debtors (third parties) of the assignment.

5.

The Client will continue to perform the processing or reconstruction of the subject matter of the agreement. Should the subject matter of the agreement be processed in conjunction with items other than our property, we will acquire joint title to the new object in proportion to the value of the subject matter of the agreement (final invoice amount, including VAT) vis-à-vis the value of the other items processed at the time of processing. Furthermore, the provisions applicable to the subject matter of the agreement delivered under reservation of title will also apply to any object developed through processing.

6.

Should the subject matter of the agreement be inextricably commingled with items other than our property, we will acquire joint title to the new object in proportion to the value of the subject matter of the agreement (final invoice amount, including VAT) vis-à-vis the value of the other commingled items at the time of the commingling. Should the commingling occur in such a way that the Client's object must be regarded as the primary object, the parties agree that the Client will transfer joint title to us on a pro rata basis. The Client will safeguard for us the sole or joint title arising in this manner.

7.

The Client also assigns to us all claims for purposes of securing our claims against the Client that arise against any third party as a result of associating the subject matter of the agreement with any piece of real estate.

8.

We agree to release any securities held by us upon the Client's request, provided that the recoverable value of our securities exceeds by more than 10% that of the claims to be secured. We will be responsible for selecting the securities to be released.

V. Prices/Terms and Conditions of Payment

1.

Unless otherwise indicated by agreements or the order confirmation, our prices are ex works, excluding packaging, which will be invoiced separately.

2.

The purchase price offered is binding and does not include the statutory VAT. On the date of invoicing, the statutory amount of the VAT will be identified separately on the invoice.

3.

The deduction of any discount will require a separate written agreement.

4.

Unless otherwise indicated by the agreement, the purchase price is due and payable net (i.e. without any deductions) within fourteen (14) days of the invoice date.

5.

Payments will be deemed to have been made on the day on which we can dispose of the agreement. Thus, the timeliness of payment of the purchase price will depend not on the time at which the payment is sent but rather on the time at which it is received by us. Furthermore, the consequences of default in payment will be determined in accordance with the relevant statutory provisions.

6.

All outstanding claims will become due if the Client discontinues payments, a composition or insolvency proceeding is initiated against the Client's assets, the initiation of such a proceeding is denied on account of insufficiency of assets, or we become aware of circumstances that cast legitimate doubt on Client's creditworthiness.

7.

Should multiple similar obligations of the Client not be fulfilled, the Client will not have the right to determine which debt payments will be made on: we may credit incoming payments against the Client's outstanding obligations, along with costs and interest.

8.

We reserve the right to make reasonable changes to our prices if, after entry into the agreement, any cost reductions or increases occur, particularly because of entry into collective wage agreements, increases in costs of materials, or changes in currency exchange rates. Upon request, we will furnish the Client with documentation of the foregoing events.

We will not be entitled to change prices unless a period of more than six (6) weeks between entry into the agreement and the agreed delivery date has elapsed. The Client does not have the right to cancel the agreement unless the price increase significantly exceeds the increase in the general cost of living between order and delivery.

VI. Time of Delivery/Delayed Delivery/Partial Deliveries/Reservation as to Self-Delivery/Limitation of Liability for Default/Industrial Action

1.

Delivery dates or periods that have not been expressly agreed upon as being binding are exclusively non-binding statements. The time of delivery indicated by us will not commence until all technical issues have been clarified.

2.

Furthermore, adherence to our delivery commitments assumes the timely and proper fulfilment of the Client's obligation. We reserve the right to raise the affirmative defence of unperformed agreement.

3.

If the Client defaults in taking delivery or is at fault for breaching other duties of cooperation, we are entitled to claim compensation for all losses incurred by us as a result, including any additional expenses. We reserve the right to assert other claims as well.

4.

If the circumstances described in Clause 3 above exist, the risk of any accidental loss or accidental deterioration of the purchase object will pass to the Client at such time as the Client enters into default in taking delivery or into debtor's delay.

5,

We will assume liability pursuant to the relevant statutory provisions insofar as the underlying purchase agreement constitutes a fixed-date transaction as defined in § 286 par. 2 No. 4 of the German Civil Code (BGB) or in § 376 of the German Commercial Code (HGB). We will also assume liability pursuant to the relevant statutory provisions if, as a result of a delay in delivery that is attributable to us, the Client is entitled to assert that it is no longer interested in the continued performance of the agreement.

6.

Furthermore, we will assume liability pursuant to the relevant statutory provisions if the delay in delivery is based on a contractual breach that was caused with wrongful intent or by gross negligence and is attributable to us. For purposes hereof, any fault by our agents or assistants is attributable to us. If the delay in delivery is not based on a contractual breach that was caused with wrongful intent and is attributable to us, our liability for compensation is limited to foreseeable losses that typically occur in such instances.

7.

We will also assume liability pursuant to the relevant statutory provisions if a delay in delivery that is attributable to us is based on culpable breach of an essential contractual duty; however, in this case, our liability for compensation is limited to those losses that are foreseeable and typically occur in such instances.

8.

Furthermore, in the event of a delay in delivery, we will assume liability for each full week of delay in the form of lump-sum compensation at the rate of three percent (3%) of the delivery value, but in any case no more than fifteen percent (15%) of the delivery value.

9.

Any other liability for a delay in delivery attributable to us is excluded. The foregoing will not affect any other statutory claims or rights to which the Client is entitled in addition to the claim for compensation because of a delay in delivery attributable to us.

10.

If the failure to adhere to time limits is attributable to force majeure, e.g., military mobilization, war, revolt, or similar events, e.g., strike, lockout, etc., the time limits will be extended accordingly.

Should the events described above substantially alter the economic significance or the content of the delivery, or have a significant effect on our operations, the agreement will be adjusted accordingly in good faith. However, should this prove economically unreasonable, we have the right to cancel the agreement. If we should then wish to exercise said right of cancellation, we must inform the Client promptly after becoming aware of the consequences of the event, even if an extension to the time of delivery has previously been agreed upon with the Client or the time limits initially extended accordingly in the manner described above.

11.

We have the right to make partial deliveries and to effect partial performance unless the Client deems this to be unreasonable.

12.

We will not assume any risk of procurement. We have the right to cancel the agreement if, despite entering into a corresponding covering purchase prior hereto, we fail to receive the subject matter of the agreement. The foregoing will not affect our liability for wrongful intent or negligence pursuant to Section XI. We will inform the Client promptly that the subject matter of the agreement will not be available in time, and if we should wish to cancel the agreement, we will exercise our right of cancellation promptly. In the event of cancellation, we will reimburse the corresponding consideration to the Client promptly.

VII. Passage of Risk/Packaging Costs

1.

Loading and shipment will be conducted without insurance and at the Client's risk. We will make an effort to accommodate the Client's requests and interests in terms of shipment type and routing; however, any additional costs incurred because of this, even in the case of agreed-upon carriage paid to place of delivery, will be borne by the Client.

2.

We will not retake transport packaging or any other packaging pursuant to the Packaging Ordinance (Verpackungsverordnung), with the exception of pallets. The Client must make arrangements for the disposal of the packaging at his own expense.

3.

If the shipment is delayed at the request or fault of the Client, we will store the subject matter of the agreement at the expense and risk of the Client. In this case, notice of readiness for shipment will be deemed to be equivalent to shipment itself.

4.

If an acceptance inspection is to be conducted, it will be decisive for the purposes of passage of risk. The inspection must be conducted promptly on the acceptance date or, failing that, after our notice of readiness for shipment. The Client is not permitted to refuse acceptance should an immaterial defect be present.

5.

Should the shipment or the acceptance inspection be delayed because of circumstances that are not attributable to us, the risk will pass to the Client as of the date of the notice of readiness for either shipment or acceptance.

6.

At the Client's request and expense, we will safeguard the delivery by means of transport insurance. However, this assumes that the Client has paid the costs of such transport insurance to us or to the insurer prior to delivery and shipment.

VIII. Refusal to Accept Delivery/Storage Charges

1.

Should the Client refuse to accept the subject matter of the agreement, we are entitled to set a reasonable time limit for the Client to accept the same. If the Client fails to accept the subject matter of the agreement within the set time limit, we are entitled to cancel the agreement and/or claim compensation for damages. In this case, we may claim twenty percent (20%) of the agreed purchase price as compensation for damages, even without proof of the damages actually incurred.

2.

This lump-sum compensation will not preclude the Client from demonstrating that in the specific case, either no damages or substantially lower damages were incurred.

3.

Prior to delivery of the subject matter of the agreement, if the Client states to us or a third party that the Client does not intend to perform the agreement or does not intend to accept delivery of the subject matter of the agreement, or if this intent can be inferred from the Client's conduct, we are entitled to claim lump-sum compensation for damages at the rate of 20% of the agreed total purchase price instead of demanding performance of the agreement.

4.

Should the shipment of the subject matter of the agreement be delayed at the Client's request by more than two weeks after either the agreed time of delivery or, if no specific time of delivery was agreed upon, after notice of our readiness for delivery has been given, we are entitled to charge a flat monthly storage fee of 0.5% of the price of the subject matter of the agreement. The Client is at liberty to demonstrate that we incurred no damages or substantially lower damages. We are at liberty to demonstrate that we incurred greater damages.

IX. Warranty for Defects

1.

The Client is not entitled to any warranty claim unless the Client has duly fulfilled his duties under § 377 of the German Commercial Code (HGB) to examine the subject matter of the agreement and to give us notice of any defects in the same.

2.

The Client must provide us with written notice of any apparent defects promptly but at latest within a period of two weeks from receipt of the subject matter of the agreement. Otherwise, the Client will have no right to assert warranty claims. Timely mailing of the aforementioned notice will suffice for purposes of complying with the foregoing two-week period. The Client will bear the burden of proving that all claim-related requirements have been fulfilled, including those concerning the defects themselves, the time at which they were determined, and the timeliness of the notice of defects.

3.

No warranty claims will exist in the event of a merely insubstantial deviation from the agreed quality, a merely insubstantial impairment of serviceability, or normal wear and tear, or damage that exists after the passage of risk because of faulty or negligent handling, excessive strain, inappropriate manufacturing facilities, faulty construction, unsuitable building ground, or special external forces that are not required by the agreement. Furthermore, no warranty claims will exist in the event of improper or faulty use of the subject matter of the agreement, faulty assembly or commissioning by the Client or any third party, improper maintenance, or in the event of any chemical, electrochemical or electrical influences for which we are not liable. Likewise, should any modifications or commissioning work be performed improperly without our prior consent, there will be no warranty claim for such modifications or commissioning work or for any consequences thereof.

4.

Should a defect that is attributable to us exist whose cause was present at the time of the passing of the risk, we are obligated to effect supplementary performance, thereby excluding the Client's right to cancel the agreement or to claim a reduction of the purchase price at our option. The foregoing will not apply if the relevant statutory provisions entitle us to refuse to effect supplementary performance.

Client must grant us a reasonable time period in which to effect supplementary performance. Supplementary performance may be effected by remedying the defect or delivering a new subject matter of the agreement at our option.

5.

In the case of defects being eliminated, we must bear all expenses necessary for said elimination, including but not limited to transport, routing, labour, and materials costs, provided that such costs do not increase because the subject matter of the agreement was transported to a place other than that of performance.

6.

Should the supplementary performance prove unsuccessful, the Client may, at his option, demand a reduction of the purchase price or cancel the agreement. The substitute performance will be deemed unsuccessful if the second tempt proves futile, unless additional attempts to eliminate the defect are warranted given the subject matter of the agreement and such attempts are deemed reasonable by the Client.

The Client is not entitled to assert any claims for compensation based on the defect until the supplementary performance has proven unsuccessful. This will not affect the Client's right to assert other claims for compensation. In this respect, we make reference to Section VI.

7.

With respect to the limitations period for warranty claims, we make reference to Section XII.

8.

In accordance with the relevant statutory provisions, we have the obligation to retake the new subject matter of the agreement or reduce the purchase price even if no time period is set (as is otherwise required) if the Client's customer, as the consumer of the new chattel that has been sold, has succeeded in demanding the retaking of the subject matter of the agreement from the Client, or that the Client reduce the purchase price because of a defect in said subject matter, or if precisely such a resulting claim under a right of recourse is raised against the Client. Furthermore, we have the obligation to reimburse the Client's expenses, including but not limited to transport, routing, labour, and materials costs, that the Client had to bear in proportion to the end consumer for the purpose of supplementary performance based on a defect present in the subject matter of the agreement at the time the risk was passed from us to the Client. However, this claim is excluded if the Client has failed to duly fulfil his duties under § 377 of the German Commercial Code (HGB) to examine the subject matter of the agreement and to give us notice of any defects in the same.

9.

Our obligation pursuant to Section IX, Clause 8 is excluded if it involves a defect based on advertising messages or other contractual agreements not made by us, or if the Client has made a special guarantee to the end consumer. The aforementioned obligation is likewise excluded if, under the relevant statutory provisions, the Client was not obligated to exercise the warranty rights vis-à-vis the end consumer or has not raised this objection to a claim filed against the Client. This provision will also apply if the Client has made warranties to the end consumer that exceed the statutory standard.

10.

In connection with warranty claims and the corresponding quality of the subject matter of the agreement, we make reference first and foremost to Section III, Clause 1. The following will also apply:

Generally, only the manufacturer's product description and our technical specifications, as agreed upon, will be regarded as the quality of the subject matter of the agreement. Public statements, sales talk, or advertising by the manufacturer or any third party will not constitute additional contractual statements as to the quality of the subject matter of the agreement.

11.

Should the Client receive faulty assembly instructions, we are only obligated to supply non-faulty assembly instructions, even if the fault in the assembly instructions is incompatible with proper assembly.

12.

The Client will receive no product warranty from us in the legal sense. This will not affect any manufacturer's product warranties.

13.

In other respects concerning the Client's compensation claims, we make reference to Section XI.

X. Claim for Supplementary Performance and Right of Retention of Payment

1.

With respect to the price to be paid by the Client and to the issue as to when said price is to be paid, we make reference first and foremost to Section V of these Terms and Conditions.

2.

Should defects be present, the Client will have no right of retention unless this is reasonable in proportion to the defects and the probable costs of the supplemental performance (including but not limited to eliminating the defect).

The Client is not entitled to assert any claim or right because of defects if the Client has failed to effect payments that are due or the amount due (including any payments made) is unreasonably disproportionate to the value of the defective deliverables.

XI. Joint and Several Liability/Limitations of Liability

A. Limitation of Liability for Default/Industrial Action

With respect to the limitation of our liability for default, we make reference to Section VI, Clause 5 et seq.

B. Limited Liability in the Event of Impossibility

1.

In this respect, we make reference first and foremost to the provisions of Section VI, Clause 12.

2.

The following will also apply:

Should it prove impossible for us to effect delivery, the Client is entitled to claim compensation for damages pursuant to the relevant statutory provisions. However, the Client's claim for compensation, in addition to or in lieu of the performance and for reimbursement of futile expenses, is limited to ten percent (10%) of the value of the respective part of the delivery that cannot be used because of the aforementioned impossibility.

3.

Any other claims of the Client because of the impossibility of the delivery are excluded. This limitation will not apply if we are liable in case of wrongful intent, gross negligence, or because of injury to life, body, or health. The Client's right to cancel the agreement will not be affected by the foregoing limitation. No change in the burden of proof to Client's disadvantage is associated with the foregoing provisions.

C. Exclusion from Liability/In the Absence of Delay in Delivery/In the Absence of Impossibility

1.

In case of wrongful intent or gross negligence on our part or that of our agents or assistants, we will be liable pursuant to the relevant statutory provisions. Otherwise, we will only be liable pursuant to the Product Liability Act (Produkthaftungsgesetz) for injury to life, body, or health, or for the culpable breach of essential contractual duties, or if we fraudulently conceal the defect or have given a warranty for the quality of the subject matter of the agreement.

2.

However, the claim for compensation for breach of essential contractual duties is limited to those losses that are typical for the agreement and are foreseeable. Nevertheless, our liability for losses that the delivery item causes to any objects of legal protection owned by the Client, e.g., damage to other articles, is completely excluded. The above provisions will not apply in the event of wrongful intent or gross negligence, or if we are liable because of injury to life, body, or health, or if we have fraudulently concealed the defect or have given a warranty for the quality of the subject matter of the agreement.

3.

The foregoing provisions extend to compensation in addition to performance and compensation in lieu of performance, regardless of legal ground, in particular because of defects, breach of contractual duties, or tort pursuant to §§ 823 and 831 of the German Civil Code (BGB). The foregoing provisions also apply to the claim for reimbursement of futile expenses. Liability for performance will be governed in accordance with Section XII A in conjunction with Section VI, Clause 5 et seq., while liability for impossibility will be governed in accordance with Section XII B in conjunction with Section VI, Clause 12.

4.

Should our liability be excluded or limited, this will also apply to the personal liability of any of our employees, agents, and assistants.

5.

With respect to the limitations period for compensation claims, we make reference to Section XIII.

6.

No change in the burden of proof to the Client's disadvantage is associated with the foregoing provisions.

XII. Limitations Period

1.

The limitations period for claims and rights concerning defects in the subject matter of the agreement is one (1) year from delivery. However, this will not apply in the cases specified in § 438 par. 1 No. 1 of the German Civil Code (BGB) (legal defect in title to immovable objects), § 438 par. 1 No. 2 of the BGB (constructions, articles for constructions), or § 479 par. 1 of the BGB (contractor?s claim under a right of recourse).

The periods indicated in sentence 2 above are subject to a limitations period of three (3) years.

2.

Regardless of the legal ground of the claim, the limitations periods pursuant to Clause 1 above will also apply to all compensation claims made against us in connection with the defect. Should any compensation claims against us exist that are not associated with any defect, the limitations period specified in Clause 1, first sentence above will apply.

3.

The foregoing limitations periods will not apply

a) in the event of wrongful intent,
b) if we have fraudulently concealed the defect or have given a warranty for the quality of the deliveries/deliverables. If we have fraudulently concealed a defect, then instead of the periods indicated in Clause 1, the statutory limitations periods that would apply in the absence of fraud will apply, i.e., § 438 par. 1 No. 1 of the German Civil Code (BGB) (legal defect in title to immovable objects), No. 2 (constructions and articles for constructions), and No. 3 (other delivery), thereby excluding the extension of the limitations period in the case of fraud pursuant to § 438 par. 3 of the BGB.
c) In case of injury to life, body, health, or liberty, or for claims under the Product Liability Act (Produkthaftungsgesetz), or in the event of a breach of duty caused by gross negligence, or in the event of breach of essential contractual duties. In the above cases, the statutory limitations periods will apply.

XIII. Retention/Setoff

1.

The Client will only have a right of setoff if his counterclaims have been determined to be final and absolute by a court of law or have been acknowledged by us.

2.

The Client may only exercise a right of retention if his counterclaims are based on the same contract.

3.

Should defects exist, the Client will only have a right of retention pursuant to Section X, Clause 2.

XIV. Concluding Provisions/Jurisdictional Venue/Place of Performance

1.

If the Client is a merchant, the jurisdictional venue will be that of our principal place of business. However, we have the right to file legal action against the Client with the court of its domicile.

2.

The laws of the Federal Republic of Germany will apply, thereby excluding the applicability of the UN Convention on Contracts for the International Sale of Goods (CISG).

3.

Unless otherwise indicated by the contractual agreements, the place of performance is our principal place of business.

4.

Should any provision of the agreement or agreed with the Client, including these Terms and Conditions, prove to be invalid in whole or in part, this will not affect the validity of the remaining provisions of the same. The wholly or partially invalid provision will be replaced by a provision that most closely conforms to the economic effect of the invalid one. The same will apply by analogy if, in the course of performing the agreement, the parties determine that a contractual gap exists and needs to be filled, or if because of a change in circumstances, a provision has become meaningless, must be regarded as outdated, or has become impracticable.

5.

Neither this agreement nor any conduct by the contracting parties that deviates from this agreement will cause any existing contractual rights or duties to be modified or revoked or any new rights or duties to be established.

6.

The headings of the individual provisions of this agreement are for convenience of reference only and contain no separate contractual provisions or legal significance.