Delivery and Payment Terms and Conditions

Section 1 Applicability of conditions

The Seller’s deliveries, services and offers are carried out only on the basis of these terms and conditions. They shall thus apply to all business relationships even if they have not been expressly re-agreed.
The Purchaser’s General Terms and Conditions do not obligate the Seller even if they are not expressly rejected.

Section 2 Conclusion of contract

1. Offers contained in brochures, advertisements etc. are – also in respect of price details – subject to confirmation and non-binding. The Seller shall keep to specially prepared offers for 30 calendar days.

2. The Purchaser is bound to his order for 4 weeks. Orders require the written confirmation of the Seller to be legally effective. If the Seller does not refuse acceptance within 4 weeks of receipt of the order, confirmation shall be regarded as having been given.

3. Side agreements, amendments and supplements, in particular agreements on fixed delivery periods, are only applicable if the Seller has expressly confirmed them in writing.

Section 3 Prices, price modifications

1. The prices do not include statutory turnover tax. This is always stated separately.

2. The prices do not include packaging or shipping costs, nor do they include transport insurance. Spare parts and accessories with a total delivery value of less than 150,00 euros shall be delivered by the Seller COD plus freight and packaging and, if relevant, plus transport insurance.

3. The agreed price is based on the present material costs and wages. If they alter between the conclusion of the agreement and delivery, the Seller can reasonably adjust the price in accordance with adjustments to the relevant wages and /or material costs which may have taken place between conclusion of the agreement and delivery.

Section 4 – Delivery periods

1. Otherwise, delivery dates or periods, which can be agreed as either binding or non-binding, require written form.

2. If there are any delays in delivery for which the Seller is responsible, the term of the period of grace to be set by the Purchaser shall be fixed at 2 weeks.

3. If the Seller defaults for reasons for which he is responsible, liability for damages in the case of ordinary negligence is ruled out.

4. If the Purchaser sets a reasonable period of grace with the threat of refusal after the Seller has already defaulted, he is entitled, after fruitless expiry of this period of grace, to withdraw from the agreement; claims for damages due to non-performance are only due to the Purchaser if the delay has been caused by intent or gross negligence.

Section 5 Shipping and transfer of risk

1. Risk shall be transferred to the Purchaser as soon as the consignment and the person carrying out transport has been transferred or, for the purpose of shipping, has left the Seller's works or the works responsible for manufacture. Risk shall be transferred at the latest - even in case of partial deliveries or assumption by the Seller of other services, e.g. shipping costs or delivery and installation - as soon as the consignment has been transferred to the person carrying out transport or has left the works for the purpose of shipping. If shipping is delayed at the Purchaser’s request, the risk shall be transferred to him on notification of readiness for shipping.

2. At the Purchaser’s request, deliveries are insured in his name and on his account.

Section 6 Warranty

1. If the delivered item is defective or if warranted characteristics are absent, or if it becomes damaged within the warranty period through fabrication or material defects, the Seller shall, according to his choice, deliver a replacement or make subsequent remedy, under exclusion of any other warranty claims of the Purchaser. Multiple remedies are permitted.

2. The warranty period is six months and commences on the date of delivery.

3. Obvious defects shall be notified to the Seller in writing and without delay, but within 14 days of delivery at the latest. The defective delivered items shall be kept ready for inspection by the Seller in the condition in which they were at the time of establishment of the defect. Any neglect of the above obligations rules out any claim for warranty against the Seller.

4. If the remedy or replacement is deemed to have failed after a reasonable period, the Purchaser can, according to his choice, demand a reduction in the purchase price or reversal of the contract.

5. The above regulations of this section do not apply to used equipment, which is delivered under exclusion of any warranty. In this respect it should be made clear that used equipment is always sold and delivered under exclusion of any warranty.

6. The Seller shall be available to the Purchaser for the issuance of information and advice about the use of his product to the best of his knowledge. He is, however, only liable for this according to the following clause if special remuneration has been agreed in this respect.

7. Warranty is ruled out for material provided by the ordering party, and for defects resulting from this and their consequences.

Section 7 Assembly

1. Assembly works shall, unless otherwise agreed, be remunerated separately.

Section 8 Limitation of liability

1. Unless otherwise agreed below, further claims of the Purchaser – for whatever legal reasons - are ruled out.

2. The Seller is therefore not liable for damage not incurred to the delivered item itself; in particular he is not liable for loss of profit or other financial loss arising for the Purchaser.

3. The above exclusion of liability shall not apply where the cause of damage is due to intent or gross negligence. Further, it shall apply if the Purchaser asserts claims for damages on grounds of non-performance under sections 463, 480 sub-section 2 of the German Civil Code (BGB) due to the absence of a warranted characteristic.

Section 9 Reservation of title

1. Our deliveries take place exclusively subject to reservation of title. The delivered goods shall remain our property until all accounts receivable from the ordering party to us have been paid in full, regardless of their legal basis. This shall also apply if the purchase price of certain consignments designated by the customer has been paid.

2. The Purchaser is obliged to store the delivered item correctly and to insure it against fire and water damage as well as theft.

3. In the case of open-account credit, reservation of title shall be regarded as security for our balance claim. At our request, we shall be permitted to assume the goods stored with the Purchaser and delivered by us as stock in case of delayed payment by the Purchaser.

4. If the items in our property are processed with other items, we shall acquire the co-ownership of the new items in the ratio of the invoice value of our goods to the value of the other processed goods at the time of processing. Otherwise, the Purchaser shall keep the goods which are solely or jointly owned by us at no cost for us.

5. The Purchaser is entitled to re-sell the delivered goods within the ordinary course of business. He is not permitted to assign or pledge goods which have not been paid for.

6. The Purchaser is obliged to notify us of any endangerment of title through imminent or actual assignment, retention or other intervention of third parties etc. without delay and to draw the attention of the executory officers to our ownership. He is liable for any damage arising from not doing so and for any intervention costs. The costs incurred by averting assignment shall be borne by the Purchaser.

7. If the Purchaser sells the goods delivered by us – irrespective of their condition – he shall hereby assign the claims against his purchasers together with all incidental rights arising for him from sale until complete payment of all our claims from the delivery of goods up to the value of our goods integrated in the sold item. The Purchaser is entitled to collect these accounts until revocation by the Seller but shall immediately pay the amounts collected by him to the deliverer to the extent of his due claim. No other assignments are permitted. At our request, the Seller is obliged to announce assignment to sub-ordering parties and to surrender the documents. We are authorised to collect the account ourselves.

8. If the value of the securities given to us exceeds our delivery demands by a total of more than 20%, then we are obliged at the Purchaser’s request to return the excess.  The selection of the securities to be released is the responsibility of the Seller.

9. In case of returned goods based on our reservation of title, we are only obliged to grant credit for the invoice value, less the intervening depreciation together with the return and dismantling costs, but subject to a minimum of 30%.

Section 10 Payment

1. Collection may only be performed by persons authorised by the Seller, and who have previously been made known to the Purchaser by the Seller. The Supplier is entitled to assign his receivables from deliveries and services for financing purposes.

2. Invoices of the Seller are payable by the date stated on the invoice. No deduction of discount has been agreed.

3. If the Purchaser defaults, the Seller is entitled to charge annual interest of 5% above the discount rate of the Bundesbank.

4. The Seller expressly reserves the right to reject the receipt of cheques or bills. Acceptance is only possible subject to payment. Discount or bill charges shall be borne by the Purchaser and are due immediately.

5. The Seller is entitled, in spite of any other provisions of the Purchaser, to set off payments against his previous debts.  If costs and interest have already arisen, the Seller is entitled to set off the payment first against the costs, then against the interest and finally against the main demand.

6. The Purchaser is only entitled to set off if the counter-claim is not disputed or has been legally established.

7. If the ordering party defaults, all other claims shall immediately become due for payment without the need for a notice of default.

8. For deliveries and services to ordering parties in a foreign country, it is regarded as expressly agreed that all prosecution costs arising for the Supplier both in and out of court in case of default by the ordering party shall be borne by the ordering party.

Section 11 Copyright

1. The Customer undertakes to observe strictly all copyrights and provisions concerning documentation or other data carriers.

2. The production and dissemination – with or without payment - of copies of documentation or other data carriers is not permitted unless it has been expressly permitted by the Supplier.

Section 12 Place of jurisdiction – applicable law

1. The place of performance for all obligations arising from this agreement is the Seller’s head office.

2. The place of jurisdiction for all disputes arising from the contractual relationship including action on bills is – inasfar as legally permitted – the Seller’s head office. The Seller is entitled to take action at the court which is competent for the Purchaser’s head office.

3. The mutual legal relationships shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of international sales laws.

Section 13 Data protection

The Purchaser’s data shall be stored in the Seller’s computer system and used only for simplification of the Seller’s administration. The Purchaser’s data shall not be passed on to third parties and shall be treated confidentially.

Section 14 Severability clause

1. Should individual provisions of this Agreement or individual sections of the General Terms and Conditions prove legally invalid, the Agreement shall remain binding. The gap arising from the removal of the invalid provisions shall be filled in good faith in accordance with the spirit of the Agreement.

Argenbühl-Eisenharz, 07.06.2005