General Terms of Sale

Applicable to:

1. An entity acting in a commercial or self-employed occupational position at the time of contract conclusion (merchant);

2. Legal entities under public law or a special fund under public law.

I. General

1. All deliveries and services are subject to these Terms or to separate conditions possibly agreed. Deviating purchasing terms of the Buyer do not become part of the Contract as a result of order acceptance.

In the absence of an agreement to the contrary, the Contract is concluded after the order confirmation by the Supplier.

2. The Supplier retains the property and copyrights to all samples, estimates, drawings and similar information of both physical and non-physical kind including in electronic form; they may not be made available to a third party. The Supplier undertakes to make available to a third party information and records designated as confidential by the Buyer only with the latter’s consent.

II. Price and Payment

1. In the absence of a separate agreement, prices are valid ex works including loading at the factory but excluding packing and unloading. Value-added tax in the current statutory amount must be added to the prices.

For order totals of less than € 500 before tax, a handling fee of € 25 is charged.

2. Payment must be made by the contractually agreed payment term. The payment term starts as of the date of invoice. The receipt of payment by the Supplier is relevant for the observation of the payment term. In case of late payment, the Buyer must pay late-payment interest of 8 % above the basic interest rate.

3. The Buyer is entitled to withhold payments only when and to the extent that his counterclaims are undisputed or have been declared legally final.

4. The right of the Buyer to offset under other agreements may be invoked only when his counterclaims are undisputed or declared with legal finality.

III. Delivery Times and Delays

1. Delivery times are a function of the agreement between the Contract Parties. Their observation by the Supplier assumes that all commercial and technical questions have been clarified between the Contract Parties and that the Buyer has met all obligations incumbent on him such as the submission of any official certifications or permits required or made an advance payment. When this is not the case, the delivery date shall be adequately extended. This does not apply when the delay is attributable to the Supplier.

2. The observation of a delivery term is subject to the proviso of correct and timely delivery by subsuppliers of the Supplier. Imminent delays will be notified by the Supplier as soon as possible.

3. A delivery term is considered met when the shipment has left the plant of the Supplier or shipping readiness has been notified prior to its expiry. Where an acceptance is required, the acceptance date is relevant – except in the case of justified refusal of acceptance – or alternatively, a report of acceptance readiness.

4. If the dispatch or acceptance of a shipment is delayed for reasons attributable to the Buyer, the costs resulting from the delay will be charged to the latter starting one month from the report of shipping or acceptance readiness.

5. If the non-observation of a delivery term is the result of force majeure, labour unrest or other events beyond the control of the Supplier, the delivery term shall be adequately extended. The Supplier will inform the Buyer of the start and end of such circumstances as early as possible.

6. The Buyer is entitled to withdraw from the Contract without notice if the order can no longer be shipped by the Supplier in its entirety before the transfer of the risk. The Buyer may moreover withdraw from the Contract when the shipment of a part of the delivery is no longer possible or if he can demonstrate a legitimate interest in refusing a partial shipment. When this is not the case, the Buyer must pay the contractual price for the partial shipment. The same applies in the event of an incapacity of the Supplier. In all other matters, Subsection VII.2 shall apply.

If the impossibility or incapacity occurs during late acceptance or if the Buyer is solely or mainly responsible for these circumstances, he remains obligated to render the counterperformance.

7. If the Supplier is in arrears and if this results in a loss to the Buyer, the latter is entitled to demand a flat-rate late delivery penalty. It shall be 0.5 % for every full week of delay but no more than 5 % of the value of the part of the total shipment which can no longer be used contractually or in time as a result of the delay.

If the Buyer sets the Supplier an adequate grace period for performance taking the legally provided exceptions into account and if this limit date is not observed, the Buyer is entitled to rescission within the limits of the statutory provisions. He undertakes on demand of the Supplier to declare within a reasonable period whether the right of rescission will be invoked or not.

Further claims out of late delivery shall be subject exclusively to Subsection VII.2 of these Terms.

IV. Transfer of Risk and Acceptance

1. The risk passes to the Buyer as soon as the shipment has left the factory, also in the case of partial shipments or when the Supplier has also assumed other services such as shipping costs, delivery and assembly. An acceptance, where required, is relevant for the transfer of the risk. It must be performed promptly at the date of acceptance or alternatively after a report of acceptance readiness by the Supplier. The Buyer may not refuse acceptance on account of a minor defect.

2. If shipment or acceptance is delayed or not performed due to circumstances beyond the control of the Supplier, the risk passes to the Buyer on the day of the report of shipping or acceptance readiness. The Supplier undertakes to take out insurance coverage for account of the Buyer when so requested by the latter.

3. Partial shipments are permitted as far as reasonable to the Buyer.

V. Reservation of Title

1. The Supplier reserves title to the delivery item until full payment of the purchase price and any ancillary claims. This also applies where individual or all claims by the Supplier have been recorded on a running account and the balance has been drawn and acknowledged. The Customer shall sufficiently insure the delivery item, at the replacement value, against loss and damage. The insurance policy and evidence of payment of the premiums must be submitted to the Supplier on request. The Customer hereby assigns to the Supplier any claims under the insurance policy, subject to the condition subsequent that title passes to the Customer. The Supplier hereby accepts the assignment.

2. Where a third party substantiates or asserts a right to the goods which are subject to retention of title, the Customer shall notify the Supplier of this without delay. The costs arising as a result of any defense against a take hold by a third party of the goods which are subject to retention shall be borne by the Customer insofar as they cannot be recovered from the third party.

VI. Defect Claims

Subject to Section VII, the Supplier is liable for physical and legal vices of the shipment as follows:

Physical Vices

1. All parts found to be defective due to circumstances prior to the transfer of risk must either be repaired or replaced by flawless products at the option of the Supplier. The detection of such defects must be promptly notified to the Supplier in writing. Replaced parts become the property of the Supplier.

2. To undertake repairs or to make a substitute delivery which the Supplier believes are required, the Buyer must give the Supplier the required time and opportunity; otherwise, the Supplier is exempted from liability for the resulting consequences. The Buyer has the right to have the defect repaired himself or by a third party and to demand the reimbursement of the resulting expenses from the Supplier only in urgent cases of a risk to operating safety or to avert disproportional damage whereby the Supplier must be notified thereof promptly.

3. The Supplier shall bear all direct costs of a repair or substitute delivery including the shipping costs if the claim is found to be warranted. He shall furthermore bear the costs for the disassembly and reinstallation and the wages of possibly required assemblers and auxiliaries including their travel expenses provided that this does not constitute an unreasonable charge on the Supplier.

4. The Buyer has the right to withdraw from the Contract within the limits of the statutory provisions if the Supplier allows an adequate grace period for the repair or replacement delivery due to a physical defect to pass without result, with due allowance being made for any exceptions granted by law. When the defect is only minor, the Buyer only has a right to a reduction of the contractual price. In all other case, the right to a reduction of the contractual price shall be excluded.

5. Further claims are subject to the provisions in Section VII.2.

6. No liability is assumed in the following cases:
Inadequate or improper use, faulty assembly or start-up by the Buyer or third party, natural wear, defective or negligent treatment, improper maintenance, unsuitable operating media, faulty construction works, unsuitable building ground, adverse chemical, electrochemical or electrical factors except where these are attributable to the Supplier.

7. If the Buyer or a third party performs repairs improperly, the Supplier assumes no liability for the resulting consequences. The same applies to modifications of the delivery object made without the prior consent of the Supplier.

Title Defects

8. If the use of the delivery object results in a breach of commercial patents or copyrights in Germany, the Supplier must in principle obtain at his expense for the Buyer the right of subsequent use or modify the delivery object in a way acceptable to the Buyer so that the breach of the patent no longer occurs.

When this is not possible at economically viable conditions or within a reasonable period of time, the Buyer is entitled to withdraw from the Contract. Under these conditions, the Supplier likewise has the right to withdraw from the Contract.

In addition, the Supplier shall keep the Buyer harmless from claims asserted by the patent holders in question when these are undisputed or declared legally final.

9. In the event of a patent or copyright violation, the obligations of the Supplier quoted in Section VI.8 are final subject to Section VII.2.

They are valid only if

– the Buyer has promptly informed
   the Supplier of any patent or
   copyright violations asserted,

– the Buyer has supported the
   Supplier to a reasonable extent
   with the defence against any
   claims asserted or allows the
   Supplier to carry
   out the modifications as per
   Section VI.8,

– the Supplier is entitled to take
   any countermeasures including
   extrajudicial settlement,

– title defect does not result from
   an instruction of the Buyer and

– the violation was not caused in
   that the Buyer has modified the
   delivery object without
   authorization or has used it in
   a non-contractual manner.

VII. Liability of Supplier and Liability Limitations

1. If the delivery object can no longer be used by the Buyer as contractually intended as a result of flawed suggestions or advice supplied or culpably omitted by the Supplier before or after contract conclusion or due to a culpable violation of other ancillary contractual obligations, in particular instructions for the operation and maintenance of the delivery object, the provisions of Sections VI and VII.2 shall apply and other claims of the Buyer be excluded.

2. For any damage not suffered by the delivery object itself, the Supplier is liable – irrespective of the legal reason – only in the event of

a) premeditation,

b) gross negligence of the holder,
     his corporate agents or executives,

c) a culpable injury to health, life
     or limb,

d) maliciously concealed defects,

e) a guarantee undertaking

f)  for defects of the delivery object
     when liability is assumed under
     the Product Liability Act for
     property damage or personal injury
     involving objects for use by the
     final consumer.

For a culpable breach of material contract obligations, the Supplier is also liable in the case of premeditated or gross negligence on part of his executives as well as for slight negligence, in the latter case limited to the contract-typical and reasonably foreseeable damage.

Further claims are excluded.

VIII. Time-Barred Limit

All claims of the Buyer – irrespective of the legal reason – lapse within 12 months. Compensation claims and Section VII.2 a–d and f shall be subject to the statutory limits. They also apply to defects in a building or to products when used in a construction project in line with their customary purpose and having caused a defect in the latter.

IX. Use of Software

When software is part of the delivery, the Buyer is granted the non-exclusive right to use the supplied software including its documentation. It is supplied for use with the delivery object in question. The use of the software on more than one system is not allowed.

The Buyer may reproduce, reprocess, translate or reverse-engineer the software from object code to source code only to the extent permitted by law (Sec 69 a ff. UrhG). The Buyer undertakes not to remove any manufacturing data, in particular copyright notices, or to modify them without the prior explicit consent of the Supplier.

All other rights to the software and documentation including any copies remain with the Supplier or software supplier. The granting of sublicenses is not permitted.

X. Applicable Law and Jurisdiction

1. All legal relationships between the Supplier and the Buyer shall be subject exclusively to the laws of the Federal Republic of Germany governing the legal relations between domestic parties.

2. Place of jurisdiction is the court competent for the seat of the Supplier. The Supplier, however, is entitled to start proceedings at the registered domicile of the Buyer.