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General conditions of sale and delivery

 

I. General

 

  1. The business relations between our customers and ourselves are exclusively governed by the following general conditions of sale and delivery (GCSD). All other regulations, particularly the general terms of business of customers, shall only be valid when we have expressly confirmed this in writing.

    Our GCSD shall be deemed acknowledged upon acceptance of delivery at the latest. They shall also be deemed acknowledged within the scope of continuous business relations. Customer business conditions, regardless of the nature of content or designation thereof, shall only be deemed applicable, even if not expressly contradicted on our part, where they do not deviate from our own GCSD, unless otherwise expressly agreed in writing.

  2. Our offers are non-binding, as are technical details and descriptions of the delivery item contained in offers, brochures and other information. Orders, contracts, changes or additions to the contracts and all the other agreements or declarations, including the assurance of properties, shall only be binding for us in cases where we have expressly confirmed the same in writing (cf. section II. (3) bottom on delivery deadlines).

  3. Changes made to this GCSD and/or the provisions included in the contract must be made in writing.

  4. The remaining provisions shall be unaffected by the invalidity of any individual contractual provisions.

  5. Unless otherwise agreed, the place of performance for all payment and other contractual obligations is Ahlen. The place of performance for deliveries is the shipping point.

  6. For all legal disputes, including payment by check or bill of exchange, the competence of the courts with jurisdiction over the location of our registered company office is hereby agreed. The contractual relationship shall be governed exclusively by German law, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

  7. The law of the Federal Republic of Germany, excluding standard UN commercial law (CISG), shall remain applicable, even if the registered office of the customer is overseas and for deliveries made overseas. Please refer to section IV (9) bottom.

  8. The formal requirements specified in these GCSD shall also apply to offers, agreements, declarations and assurances of our representatives and sales advisors.

  9. Even after conclusion of contract, we reserve the right to make constructive modifications to the products to be delivered, which are deemed necessary as part of ongoing technical development.

  10. The rights of our customers under the contract are not transferable.

 

 

II. Delivery, transfer of risks, delay

 

 

  1. The delivery shall be made ex works or from our warehouse.

  2. The scope of our delivery obligation is solely contingent on our written offer and/or our written order confirmation.

  3. We shall strive in good faith to comply with the delivery periods and/or deadlines we have specified. However, unless a specific written guarantee is provided, the delivery periods and/or deadlines specified by ourselves are approximate and contingent on timely and proper and sufficient supply by our own sub-suppliers. The deadlines specified in our order confirmations are not deemed guaranteed. The delivery period commences, unless otherwise expressly agreed in writing, with the dispatch of order confirmation. Regardless of circumstances, compliance with the specified delivery period is contingent on prompt receipt of all documents to be supplied by customers and customer compliance with the agreed payment conditions and other obligations. Partial deliveries are permissible and can be charged separately.

  4. In the event of extraordinary circumstances beyond our control or the control of our sub-suppliers, the delivery period shall be extended to a reasonable extent. If delivery proves impossible or unfeasible due to the circumstances in question, we shall be entitled to withdraw from the contract, in whole or in part. Extraordinary circumstances as defined by this paragraph refer to any event beyond our control, which completely or partially prevents, impedes or delays the manufacture, delivery or transport of the goods, namely in addition to cases of Force Majeure, particularly also war, events similar to war, riots, government interventions, changes to commerce and energy policy, business disruptions of any kind, strikes and lock-outs, defects or excessive price increases in raw materials, means of transport or available workforce, traffic disruptions, bans on import, export or transit shipments, shipwreck or other damage to shipping materials, regardless of whether in the country of origin, transit or destination.

  5. When engaging in import and export transactions, we may withdraw from the contract if the required approvals are not issued.

  6. We shall also be entitled to a right of withdrawal, if, based on information received, the customer is deemed not to have provided sufficient guarantees of solvency or sufficient collateral to cover our outstanding receivables is not provided or in the absence of verifiable evidence of secured financing.

  7. In the event of delivery delay, the customer is only entitled to withdrawal where he/she, with effect from the commencement of said delay, has granted an appropriate grace period of at least four weeks in writing and also subject to his/her announcing the intention to withdraw in the event of non-delivery within the specified deadline. Contractual penalties for delayed deliveries are excluded.

  8. In the event that the customer is in default of call-off orders, acceptance or collecting, or if a delay in shipment or in delivery is attributable to the same, we shall be entitled, without prejudice to further claims:
    a) To withdraw from contractual agreements pertaining to the amount of non-delivered materials or
    b) To store the goods at the customer’s expense and risk in our third-party warehouses and to bill them for an amount of at least 0.25% of the applicable invoiced amount for the quantity of goods not yet accepted for each new week of storage or part thereof, or
    c) After the expiration of an appropriate notice period which we have set, to sell the quantity of goods not accepted elsewhere; whereupon the customer shall be liable for any difference between the agreed purchase price and revenues from any other form of sale.

  9. Unless otherwise specified in these GCSD, the terms and definitions of INCOTERMS 2000 shall apply when using cost clauses.

  10. For all deliveries – including CIF or FOB deliveries or customer collection – the risk is deemed to pass to the customer as soon as the food has left the respective delivery factory or warehouse or a means of transport, forwarder or carrier at our production or storage site; this shall apply regardless of who is to bear the freight costs. With regard to para. 8 above, the risk is deemed to have passed to the customer with notification of readiness for shipment.

  11. Despite the above, if exceptional circumstances result in claims being exercised against us for transport damage or losses, the customer shall only be entitled to exercise the same if he/she ensures that proper notice of damage and/or loss is given on the forwarding documents and invoices and that any damage has been properly recorded and where the customer has notified us or the transport company of the details of such damage or loss within a cut-off period of 10 days of receipt of goods at the destination, or, in the event of non-arrival, following receipt of notification that they are ready for consignment and retention of the goods, together with their packaging, for inspection by ourselves.

  12. Transport costs shall be charged to the customer if we deliver from our warehouse or where these costs are incurred for a delivery from our warehouse. The packaging, when transport pallets are used, shall neither be invoiced to the customer nor taken back by ourselves. Any special packaging which is required in response to indications from the customer shall be at the costs of the customer.

  13. The costs of any transport insurance shall be charged to the customer, where we deliver from our warehouse or where these costs are incurred to cover insurance for a delivery from our warehouse.

 

 

III. Prices, payment terms, securities

 

 

  1. Unless otherwise specified in any of the following clauses, deliveries shall be made at the prices specified in the order confirmation (plus the respectively applicable rate of value-added tax). If no order confirmation has been issued, the prices cited in the invoice shall prevail. Unless otherwise expressly agreed in writing, in the event of any subsequent imposition or increase of any charges, taxes or other levies on the goods, particularly EC charges and anti-dumping or countervailing duties etc., as well as any change in currency exchange rates, we shall be entitled to increase the agreed purchase price accordingly.

  2. Unless otherwise agreed in writing, payments shall be made no later than 30 days after delivery or issuance of invoice, strictly net and in cash or via bank transfer. They are deemed to have been made as of the day on which the relevant amount is made available to us.

  3. All payments shall be made exclusively to ourselves. Sales advisors, travelers and representatives are only empowered to accept payments if they have special written authorization to do so.

  4. Bills of exchange are only accepted for payment after prior express agreement and excluding our liability for timeliness and appropriateness of presentation and protest and contingent on their eligibility for rediscounting and payment of all corresponding taxes. Bills of exchange and checks are credited subject to receipt and stating the value date at which the equivalent is available. Discount, collection as well as other fees and charges on bills of exchange, including stamp duty, shall be charged to the customer. We are not obliged to initially seek satisfaction of any bills of exchange, checks or other instruments provided on account of performance.

  5. If our customer has multiple similar liabilities outstanding, he/she shall not be entitled to decide the order in which debts should be settled. Instead, we shall be entitled to offset any payments due in accordance with §§ 366 para. 2, 387 German Civil Code against any outstanding liabilities of the customer plus costs and interest.

  6. In the event of non-compliance with the payment terms, we shall be entitled, without prejudice to further claims, to charge penalty interest at a rate equivalent to that imposed on ourselves for our own agreed loans, but a minimum of 4% over the discount rate of the German Central Bank.

  7. All claims, including those for which we have already accepted bills of exchange, shall become due with immediate effect if the customer defaults on payment, breaches other key obligations imposed under the contract or in these GCSD or we become aware of circumstances which are liable to have an adverse effect on the financial standing of the customer, particularly cessation of payment, composition or insolvency proceedings. In these cases, we shall be entitled to withdraw all pending deliveries or only proceed with the same against pre-payment or collateral. In the specified case, we shall also be entitled to request that any goods which remain unpaid be removed by the customer at his/her own expense. However, this shall not constitute withdrawal from the contract.

  8. In all other cases, in the event of payment default and subject to setting an appropriate deadline, we shall be entitled to withdraw from the contract or claim compensation on the grounds of non-performance.

  9. Setting off any counterclaims other than those which are undisputed or legally confirmed is inadmissible. Similarly, our customer is not entitled to exercise any right of retention pursuant to such claims, particularly due to his/her warranty claims.

 

 

IV. Retention of title

 

 

  1. The delivered good remains our property (reserved good), pending payment in full by the customer for all claims arising out of the business relationship and for payment via bill of exchange or check, until the liabilities to which we are exposed for payment by bills of exchange or check no longer apply. In the event of multiple claims or a running account, the reservation of title shall be deemed a security for all claims, irrespective of whether individual deliveries have already been paid for.

  2. The customer is only entitled to further processing and resale within the normal scope of business transactions, but not to pledging, chattel mortgage or any other extraordinary dispositions. The customer is obliged to secure our rights in the event of resale of the reserved good on credit. Claims arising from resale shall be already assigned to ourselves by mutual agreement and with prompt effect. The customer may collect the same, but must manage any amounts thereby received on trust and subject to separate storage and accounting on our behalf. However, under any circumstances where the customer fails to meet incumbent contractual obligations or succumbs to financial collapse, he/she must allow us to handle the collection. The customer must provide us with full support in this case for any collection. Accordingly, he/she must inform us of all required information and pass on all required documents. If the reserved good is resold with other goods, the above-agreed advance assignment shall only be valid for the value of the reserved good.

  3. The customer shall handle any working or processing of the reserved good on our behalf, which shall not result in any obligation being imposed on us. In the event of processing, linking, mixing or amalgamating the reserved good with other goods, we shall basically retain co-ownership of the new item thus formed during processing at a share commensurate with the value (= gross invoice value including ancillary costs and taxes) of the reserved good to the value of the new product, in the event of combining, blending or mixing based on the value ratio of the reserved good to the value of the other goods. If the customer becomes the sole owner, he/she shall assign a relevant co-ownership interest to ourselves already as of now pursuant to the specified values and shall store the item at no charge on our behalf. If the item in question is resold, the above-agreed advance assignment shall also apply to any claims exercised by the customer from the resale, but only in an amount equivalent to the value of the co-ownership interest.

  4. The customer is obliged to handle any goods which we own with care. He/she shall ensure all necessary repairs can be immediately performed by ourselves or commissioned to a specialist workshop in any individual case to be authorized on our part.

  5. The customer is obliged to cover the goods against all customary risks, particularly fire and break-in, by taking out appropriate insurance, verifiable evidence of which must be shown to us on request. The costs for such insurance shall be covered by the customer. Claims made under the insurance for any event of damage shall be already deemed assigned to ourselves by mutual agreement, up to the value of the reserved good.

  6. Any pledging of the reserved good or other third-party access must be notified to us immediately in writing, specifying the name and address of the pledging party or third-party. The costs of any judicial or extra-judicial proceedings shall be borne at their expense.

  7. If the customer defaults on payment or fails to meet key contractual obligations, we may request the surrender of the reserved good and subsequently make use of the same. The customer must tolerate said action and also allow access to their office and business premises accordingly.

  8. This shall not constitute withdrawal from the contract. However, if we have imposed a deadline with the threat of refusal and subsequently proceed to resell the good in question, the customer shall be liable for any difference between the purchase price and the proceeds of sale as well as covering the costs of repossession.

  9. If the value of all securities exceeds the secured claims by more than 20%, the customer shall be entitled to request release of securities, which is subject to our discretion.

  10. With regards to lawsuits involving retention of title, however, we shall be entitled to assert legal claims against foreign customers before a court in their country and under their national law. In the latter case, the retention of title provision deemed agreed shall be that which most closely approximates the commercial intent of the retention.

 

 

V. Guarantees and other liability

 

 

  1. The customer must carefully and thoroughly examine each delivery immediately on receipt of the same. Any defects or deficiencies which are detected during such inspection must be notified in writing within eight days of receipt of the item. In all other circumstances, the entire delivery shall be deemed approved in this respect. If a hidden defect subsequently emerges after the initial inspection has been performed, the customer must inform us of the details immediately. When notifying the defect, the customer must describe the alleged defect in detail and in writing and particularly note details of the manner and prevailing circumstances under which this defect occurred.

  2. The scope of our guarantee extends to the assured properties of the entire machine and the lack of defects in materials and processing, in accordance with the current state of the art. However, a guarantee obligation shall only be deemed applicable if a defect occurs despite normal use of the machine and despite adherence to the operating manual and the maintenance instructions and is not the result of natural wear and tear of individual parts or improper repairs or third-party modifications.

  3. Once the customer has reported details of the defective goods to us, we pledge to repair any defects which have been reported in due form and subject to justified circumstances within an appropriate delivery period, replace them with a defect-free alternative, reduce the purchase price or cancel the purchase contract. Even in the cases cited, the customer shall remain responsible for covering the transport risk for sending and returning the goods in question. He/she is only entitled to send any item back once we have issued express written consent. We shall cover any transport costs for sending and returning goods, labor and material costs incurred when justified defect claims are made.

  4. The customer shall only be given the right to cancel the contract or reduce the price if we either decline to provide repair and exchange, or do not respond to any reasonable complaint made within an appropriate deadline of at least three weeks or the repair proves unsuccessful or the redelivery is also defective and a complaint is issued in the appropriate manner as defined in para. 1 above. Pursuant to the requirements imposed by clause 1, however, the customer can only cancel the contract when the goods cannot reasonably be provided by him/her at a reduced price.

  5. The guarantee specified in paragraphs 3 and 4 only applies for the duration of the statutory warranty period. Moreover and for a duration of 12 months from the date of delivery, we pledge to guarantee that during this period, any parts which prove defective shall be replaced by ourselves, although based on the material costs thereby incurred on our part, all ancillary costs such as shipping, travel and labor costs shall be covered by the customer.

  6. Compensation claims exercised by the customer, regardless of the legal basis, shall only be deemed valid in cases of §§ 11 No. 7 of the law on general business conditions - Terms and Conditions Act (deliberate and grossly negligent breach of contract), § 11 No. 8 (b) Austrian Civil Code (default and impossibility, where we are responsible for deliberate and grossly negligent actions), § 11 No. 9 Terms and Conditions Act (Loss of interest of the customer due to partial delay and partial impossibility of performance, but also only where we are deemed responsible for deliberate and grossly negligent actions) and § 11 No. 11 Terms and Conditions Act (falsely warranted qualities) as well as in cases of grossly negligent or intentional unauthorized acts. Moreover, claims for compensation for so-called indirect or consequential damages shall only be accepted where such circumstances where envisaged on our part prematurely at the time of concluding the contract or when issuing the assurance.

  7. Claims for damages, regardless of the legal basis, shall be time-barred 6 months after becoming aware of the damage.

  8. The above regulations also apply for the delivery of any goods other than the agreed goods.

 

 

Version: Ahlen, 31.05.2012

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