Terms

§ 1. Applicability of the terms and conditions (1) Deliveries, services and offers by the Seller are made solely based on these terms and conditions of business. They also apply for all future business transactions, even if they are not explicitly agreed upon. At the latest, these terms and conditions are deemed as having been accepted with the receipt of the goods or services. Counter-confirmations of the Buyer with reference to their terms and conditions of business or procurement are herewith discounted. (2) Deviations from these terms and conditions of business are only valid if the Seller has confirmed them in writing. § 2 Quotation and contract conclusion (1) Quotations of the Seller are subject to change without notice and without obligation. Declarations of acceptance and all orders must be confirmed by the Seller in writing or by fax to be legally binding. The same applies to supplements, amendments or subsidiary agreements. We reserve the right to intermediate sale until final reservation. Final reservation is made with the irrevocable receipt of the down payment or bank bond or a letter of credit accepted by the Suppler. The duration of the reservation is determined, unless otherwise stipulated, by the agreed delivery date. (2) Drawings, illustrations, dimensions, weights, or other performance data are only binding if they have been explicitly agreed upon in writing. (3) The sales employees of the Seller are not authorised to make verbal subsidiary agreements or give verbal assurances, which extend beyond the content of the written contract. § 3 Prices (1) Unless otherwise stated, the Seller is bound to the prices given in the quotation for 30 days after issue. The price quoted in the order confirmation of the Seller is relevant. Additional deliveries and services will be charged separately. (2) The prices are, unless otherwise agreed upon, net and EXW (named location IAW Incoterms 2010). Packaging, freight, customs duties, statutory VAT and other ancillary costs shall be charged separately as extras. § 4 Delivery and performance dates (1) Delivery dates or deadlines, which can be agreed upon as either obligatory or non-committal, must be made in writing. (2) Delays to deliveries or services due to force majeure and due to events which significantly impede or even hinder the Seller in making the delivery, this includes in particular strikes, lock-outs, official orders, etc., even if they occur at a vendor of the Seller or a sub-contractor, are not the responsibility of the Seller, even if firm deadlines or appointments have been fixed. The Seller is entitled to postpone the delivery or services for the duration of the hindrance plus a reasonable ramp-up time or to wholly or partially withdraw from the contract with respect to the unfulfilled part without being obliged to make compensation payment. (3) If the hindrance lasts longer than 3 months, the Buyer is entitled to withdraw from the unfulfilled part of the contract, after having granted a reasonable grace period. A reasonable period is deemed to be an extension of at least 4 weeks. If the delivery date is postponed or the Seller is released from his obligations, the Buyer shall not be entitled to claim any damages for non-performance. The Seller can only plead aforementioned circumstances if the Buyer is notified immediately. (4) As long as the Buyer is in arrears or delay with its obligations, especially payment obligations, all the delivery dates are interrupted. (5) The Seller is entitled to make partial deliveries and provide partial services at any time. § 5 Transfer of risk Unless contractually agreed otherwise, the risk is transferred to the Buyer as soon as the dispatch has been handed over to the person responsible for the transport or has left the warehouse of the Seller for shipping purposes. If the dispatch becomes impossible for reasons not within the responsibility of the Seller, the risk is transferred to the Buyer with the notification of the readiness for dispatch. § 6 Acceptance The Buyer is obliged to accept the purchased objects on delivery and to confirm receipt to the Seller in writing. If the Buyer is more than 14 days in arrears in taking over the purchased object from the date on which it was furnished, the Seller is entitled to withdraw from the contract or to demand compensation for non-fulfilment. If the Seller demands compensation, it will amount to 15% of the purchase price. The compensation can be assessed higher or lower if the Seller proves higher or the Buyer lower damages. Any down payment remains with the Seller until a new Buyer is found. § 7 Warranty (1) Used machines are supplied without guarantee of inherent defects. Accessories are only supplied if they are connected and they have been confirmed as belonging to the machines in question. The goods shall be sold in such a condition as they were upon conclusion of the contract. The Buyer has the right to examine and test the goods before signing the contract. If this right is only partially exercised or not at all, whatever reason for, the condition of the goods is accepted unseen. Therefore, subsequent complaints about the quality of the goods are precluded. Liability for assured properties remains unaffected. (2) If warranty periods are assured by the Seller, they commence with the date of delivery. Protective panelling will always be supplied with the goods in an orderly condition, as originally attached. It may not be removed or altered. If the Seller’s operating or servicing instructions are not complied with, or if changes are made to the products, parts exchanged or working materials used, which do not meet the original specifications, all liability for warranted qualities is cancelled, unless the Buyer can disprove the appropriately substantiated assertion that one of these circumstances has caused the defect. (3) The Buyer must inform the head of the Seller’s customer services department immediately in writing of any defects with respect to assured properties, at the latest, within a week after the receipt of the delivery. Defects that cannot be discovered within this period, even after careful examination, should be communicated to the Seller immediately . (4) Liability for normal wear and tear is precluded. (5) Only the immediate Buyer is entitled to make warranty claims against the Seller and these are not transferable. § 8 Reservation of title (1) Until all claims have been settled (including all accounts payable from current accounts) to which the Seller is entitled in connection with all deliveries and services, on whatever legal basis present or in future, the Seller shall be granted the following securities which it may release at the request of the Buyer if their value consistently exceeds the existing claims of the Seller by more than 20 % (2) The goods remain the property of the Seller. Processing or modifications are always made on behalf of the Seller, however, without incurring any obligation for the Seller. If the (co) ownership of the Seller expires due to affiliation, the contract parties hereby agree that the (co) ownership of the Buyer on the single commodity is transferred to the Seller proportional to its value (value of the invoice). The Buyer will safeguard the (co) ownership of the Seller free of charge. Goods in which the Seller has (co) ownership are referred to as goods subject to retention of title (GSRT). (3) The Buyer is entitled to process the GSRT in the ordinary course of business and to sell them as long as he is not in arrears. Pledging or deed of security is not permitted. The Buyer herewith assigns all receivables arising from the resale or other legal reasons (insurance, unlawful acts) with respect to the GSRT (including all accounts payable for current accounts) to the Seller. The Seller irrevocably authorises the Buyer to collect all claims assigned to the Seller on the Seller’s behalf in the Buyer’s name. This authorisation to collect can only be withdrawn if the Buyer fails to meet his payment obligations on the agreed terms. (4) In case of the seizure of the reserved goods by third parties, the Buyer will inform them of the ownership of the Seller and inform the Seller immediately. (5) In case of breach of contract by the Buyer, especially delayed payment, the Seller is entitled to take back the GSRT or to demand an assignment of the repossession rights of the Buyer vis-à-vis third parties. The repossession or garnishment of the GSRT by the seller does not constitute a withdrawal from the contract. (6) The Seller shall release the GSRT insofar as maintenance of the reservation of title is no longer necessary to provide the Seller with security. If the Buyer is in arrears with payments, the Seller is entitled to take repossession of the GSRT – even if he acts without proper authority. (7) If a pledge is exercised on the purchased object, the Buyer shall inform the Seller immediately. Where the Seller raises third-party action against execution, and obtains no release form the costs of the auditing creditor, the Buyer shall reimburse the Seller’s costs. § 9 Payment (1) On signing the contract, the Buyer shall make a down payment of 50% of the purchase price – where not agreed otherwise. The outstanding payment is due – unless otherwise agreed – before the goods are collected. (2) The Seller is entitled, despite contradictory terms and conditions of the Buyer, to count payments against any older debts and will inform the Buyer of the settlement. If expenses and interest have already incurred, the Seller is entitled to count the payment against the expenses first, then the interest and then against the main purchase. (3) A payment is not deemed to have been made until the Seller has full disposal of the amount in question. (4) Payment with a bill of exchange requires a separate agreement. Bills of exchange and cheques will only be accepted subject to them being collected and are not deemed to be payments until they are collected. Discount charges must be reimbursed in cash on request. (5) If payments are not made within the agreed period, the Buyer shall be deemed to be in arrears even without a reminder being issued. If the Buyer is in arrears, the Seller is entitled to charge interest from this point of time at 1% per month and to charge 12,75 € for each reminder/payment request issued. (6) If the Buyer is in arrears with payments, the Seller is entitled to withdraw from the contract if it has not yet been fulfilled by the Seller and to demand a lump sum compensation of 20 % of the order volume unless the Buyer proves that the Seller has incurred less damages. Any further claims to compensation of the Seller remain unaffected. (7) If the Seller becomes aware of circumstances, which question the solvency of the Buyer – uncertainty with respect to its financial situation due to its petition for bankruptcy, or petitioning a judicial or non-judicial settlement, protesting of a bill of exchange or cheque, enforcement or deficiency of a guarantor or any other event in accordance with § 321 BGB[1], the Seller is entitled to withdraw from the contract. (8) The Buyer is not entitled to retain or count any payments against his claims. § 10 Drawings The recipient of drawings, documents such as project plans, foundation drawings, specifications and designs, etc., may not disclose their content to any third parties. Breaches of this obligation shall oblige the Buyer to pay full compensation. Drawings or documents sent with quotations must be returned by the Recipient without request, if no order is placed. § 11 Limited liability Claims for compensation attributable to breaches of contract, negligence in contracting and unlawful acts are precluded both against the Seller as well as against their employees and sub-contractors, etc, if they are not guilty of wilful intent or gross negligence. This also applies to claims for compensation due to non-fulfilment, however only insofar as the compensation is for indirect damages or as a result of defects, unless the liability is based on an assurance, which is intended to secure the Buyer against the risk of such damage. All liability is limited to the foreseeable damages upon the conclusion of the contract. § 12 Installation work Installation work shall be carried out – where agreed - at the cost and under the direction of the Buyer. Our separate terms and conditions of installation apply as the basis for installation contracts. Should our technician fail to be present due to illness or act of nature, we cannot guarantee an immediate replacement. § 13 Applicable law, legal venue, partial invalidity 1. Both parties acknowledge German Law as being applicable for the provisions of this contract and with respect to disputes arising out of this contract or from contracts associated with this contract, and namely German litigation law and German substantive law, in particular BGB¹, HGB[2] and the law on the international sale of goods unless the above terms and condition to specify otherwise. 2. Should a term or condition of these terms and conditions of business or a term or condition within the scope of other agreements be invalid, the validity of all other terms and conditions and agreements shall remain in full force and effect. 3. The legal venue for both parties is Rockenhausen.