Allgemeine Geschäftsbedingungen

Dated 2008

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Terms of Sale and Delivery

I. Application

a) Our quotes are subject to change and non-binding. Declarations of acceptance and all orders require our written or faxed confirmation to go into legal effect. The same applies to supplements, modifications or sub-agreements. Dealings placed through our agents also only become binding with our written order confirmation.
b) Our deliveries, services and quotes are effected exclusively based on these Terms and Conditions. Thus these apply to all future business relationships, also when they have not been explicitly stipulated again. With the placing of an order, these Terms and Conditions are assumed accepted; this also applies in cases where the Buyer’s Purchasing Terms stipulate otherwise. Buyer‘s acknowledgements on the grounds of his own Business and Purchasing Terms and Conditions are hereby rejected. Deviations form these Terms and Conditions are only in effect if we confirm them in writing.

II. Prices and Terms of Payment

a)    Prices are quoted in EURO, ex-works —excluding freight, customs, importation, additional expenses and packaging plus value-added tax valid at delivery.
b)    If between order confirmation and delivery the decisive cost factors, also including federal and other taxes, rise, we are entitled to adjust the prices accordingly, unless we were able to calculate in the pursuant increases at the time of order confirmation.
c)    For new orders, we are not bound to our former prices.
d)    All payments are to be made in EURO exclusively to us. Agents are only authorized to accept payments if our specific written confirmation for this individual case is available.
e)    Bills of exchange, checks, and payment authorizations are only accepted as stipulated in a previous agreement, always on account of performance with inclusion of all collection and discount charges, note taxes and bank fees. We do not assume responsibility for timely submission, protests, notification and retention of checks and bills of exchange. We have the right to customary banking discount interest if we do not bring the bill of exchange to discount. Payment only then is considered effected when the bill of exchange or check has been redeemed.
f)    Our invoices are to be paid independent of the delivery of the goods net within thirty days from invoice date. However, a 2% allowance will be granted to the Buyer if he pays within 10 days of the invoice date. The allowance is applicable only to the pursuant delivery price, excluding additional expenses. An allowance will not be granted for any payment by bill of exchange. For the promptness of the payment, the point in time at which the money is made available to us or the amount has been credited to our account is authoritative.
g)    In the case of exceedance of the payment date, interest in the amount of 3% above the appropriate market rate of the German Federal Bank will be calculated; we reserve the right to bring to bear verified higher debt interest.
h)    If the Buyer does not meet his payment obligations punctually, especially if he does not honor a check or stops payment, or when we become aware of other circumstances which place the credit worthiness of the Buyer in question, we have the right, independent of further claims, to call in all of our outstanding accounts with the Buyer – regardless of the cause in law.
In this case, the debt is always to be paid in cash; bills of exchange are also to be honored as cash immediately. In addition, in this case we have the right to demand advance payment or security deposits. Should this demand not be met within a period of 14 days from request, we have the right to partially or completely withdraw from all other contracts not yet executed to the full extent, or to demand compensation due to non-payment. In addition, we are entitled to prohibit the Buyer from resale of the goods and the return at his expense of the goods not yet paid.
i)    The Buyer is only justified to compensation or asserting the right of retention if his claims are undisputed or have been legally determined.

III. Delivery and Acceptance

a)    Information regarding delivery times are only to be considered approximate and unbinding for us, unless something has been specifically agreed upon otherwise in written form.
b)    If documents or the like are required from the Buyer in order to execute the order, delivery periods do not begin until they are received, also in the case of binding stipulated delivery times. Should shipment become impossible without our fault, the delivery time is considered in compliance as soon as the Buyer is notified of readiness for dispatch.
c)    Delivery and performance delays due to acts of God and events which significantly hinder our delivery or make it impossible – this also includes subsequently occurring material procurement difficulties, operational disturbances, strike, lockout, manpower shortage, regulatory rulings, etc., also if they occur to our suppliers or their sub-suppliers, – entitle us to delay shipment by the length of the obstruction plus an appropriate lead time, or to partially or completely withdraw from the part of the contract not yet fulfilled.
The Buyer can demand of us that we declare within three weeks if we will withdraw or choose to deliver within a suitable grace period. Should we not make a statement; the Buyer can withdraw from the part of the contract not yet fulfilled. A compensation claim on his part is not excluded.
d)    For blanket orders, we are entitled to demand a binding stipulation especially concerning purchase dates, at the latest three months after order confirmation. Should the Buyer not comply with this request within two weeks, we have to right to set a two-week grace period and following its unsuccessful expiration to withdraw partially or completely from the contract or reject delivery and assert a compensation claim due to non-compliance.
e)    If a binding stipulated delivery time is not complied with due to our fault, the Buyer is entitled to set us a suitable grace period and following its unsuccessful expiration to assert a compensation claim or withdraw from the contract, if he gave notice of the rejection of the service when setting the grace period. The penalty compensation for delay is 5% at the most of the net delivery price of those parts of the delivery which were not effected as specified in the contract. All other claims are excluded. Preceding limitation of the penalty compensation is not valid if we have acted willfully or with gross negligence. Further claims are excluded in any case.
f)    We are entitled to make partial delivery in any case.
g)    For deliveries of high unit counts, excess or short deliveries of up to 10% of the ordered amount are permissible.
h)    Should the Buyer not fulfill his purchasing obligations, we are not bound to the guidelines concerning self-help sale without limiting any further rights; rather, we have the right to sell the supplied goods privately following appropriate prior communication to the Buyer.

IV. Shipping and transfer of risk

a)    In the absence of other written agreements, the selection of packaging, mode of dispatch as well as dispatch route are left to our discretion. The costs for packaging and freight shall be borne by the Buyer; packaging material cannot be returned.
b)    With the transfer of the material to the forwarding agent or haulier – at the latest however when leaving our site – shipping occurs at the cost and risk of the Buyer. If the delay in dispatch is the fault of the Buyer, the risk is transferred at the time of notification of readiness of dispatch.
Freight charges paid by us should only be considered a freight advance made for the Buyer. Additional freight costs for express goods are always borne by the Buyer, even if we have covered transport costs in individual cases.
All liability from our side for transport damage is excluded.
c)    Goods reported as ready for dispatch must be assumed immediately and are calculated as “delivered ex-works“.
d)    At the written request of the Buyer, the goods shall be insured against storage damage, breakage, etc., as well as transportation and fire damage. In any case, the costs are borne by the Buyer.

V. Reservation of title to ownership

a)     The deliveries remain our property – also in the sense of §43 of the Bankruptcy Act— until fulfillment of the claims due us by the Buyer, regardless of their cause in law. This also applies for the case that payments specifically are made on specially designated receivables.
b)     Any processing and handling by the Buyer occurs to the exclusion of the acquisition of ownership pursuant to §950 of the German Civil Code, as a measure of that kind always occurs on our behalf. The newly produced objects serve as our security, irrespective of the rights of third-party suppliers.
For the connection or mixing of materials not in our property by the Buyer, paragraphs 947 and 948 of the German Civil Code apply, provided that our co-ownership share of the new object henceforth counts as a reserved good of these Conditions.
c)    The Buyer is entitled to resell the reserved goods as part of a proper commercial transaction, as long as he is not in arrears. In any case he is obliged to also reach agreement with his customers on a reservation of title to ownership in accordance with the conditions in this number in the Contractual and Delivery Conditions (V). The Buyer is not entitled to other orders, especially pledging and assigning as security.
The Buyer holds our reserved property without cost; he is to insure it against all risks at his own cost.
Claims resulting from a resale or any other legal ground of any kind regarding the reserved goods are to be relinquished to us by the Buyer effective immediately with all ancillary rights as a precaution. The Buyer is authorized to collect claims relinquished to us on his own at our cost; this collection authorization can be revoked at any time.
The amounts collected by the Buyer are to be kept separately. As of the point in time when we prohibit the collection of relinquished claims, the Buyer may no longer accept payments of any type for this purpose. Upon request, the debtors of the relinquished claims are to be named to us, they are to be notified of the relinquishment and the documents for the assertion of the relinquished claims are to be submitted to us.
At our request, the Buyer is additionally obligated to issue us a special written act of transfer for each claim.
d)    Upon third-part access to the reserved goods, the Buyer shall inform them of our ownership and notify us immediately. The costs of a judicial or extrajudicial intervention are to be borne by the Buyer, unless the reimbursement of costs through a third-party occurs.
e)    We have the right to take back reserved goods due to behavior by the Buyer which is not in compliance with the contract – especially with a default in payment. We also have the right to demand the relinquishment of claims of surrender against third parties. In addition, we are authorized to take immediate possession of goods that are our property without legal recourse following previous warning. In this case, the cost for collection shall be borne by the Buyer. The repossession does not signify a withdrawal from the contract – unless the Repayment Act is applied.
If we have taken back the reserved goods, we are authorized to private sale or auction of the goods. Taking back the goods occurs at the earned profit, at the most however at the stipulated delivery prices.
Additional claims on our part for compensation, especially for lost profit, are expressly reserved.
f)    If the Buyer has transferred the objects related to his company to third parties in advance or burdened them in another way with the rights of third parties, or if he has disposed of his claims from sales – especially through blanket assignment – he must immediately notify us of this prior to delivery. In this case we are freed from all delivery deadlines. With a breech of these conditions, the Buyer does not have the right to resell the goods.
g)    If the value of the securities given to us exceeds our outstanding balance sustainably by more than 20%, we are obliged to a return transfer at the request of the Buyer; however the release of the securities remains at our discretion.

VI. Warranty

a)    Liability on our part due to the lack of guaranteed properties only applies if the order confirmation contains a corresponding guarantee explicitly in writing; for this, the use of the term “guarantee” is required in any case. The guarantee does not in any case include the risk of consequential damage caused by a defect, unless we, our management or vicarious agents have acted willfully or with gross negligence.
b)    In case we have consulted the Buyer beyond the scope of our contract, we are only liable for the functionality as well as the suitability of the delivered goods only with an explicit written guarantee.
c)    Complaints – also those in the sense of §378 in the Code of Commercial Law or due to the lack of properties explicitly guaranteed—are to be sent in writing within five days at the latest following the Buyer’s receipt of the delivery. Complaints which cannot be determined despite careful testing within this period must be reported to us immediately following the possibility of discovery with immediate termination of further processing or further use, however two months at the latest after receipt of the goods.
Provided that the goods are directly delivered to third parties or abroad on the instruction of the Buyer, testing is to take place before dispatch at our premises.
d)    We do not accept liability for faults which are caused by faulty basic materials unless the material could have been recognized as being faulty during processing.
e)    If the complaint is factually and temporally justified, we are obliged to choose to either take back the faulty goods or provide a free replacement for them or to reimburse the loss in value. Additional claims against us or our vicarious agents are excluded, irrelevant of the course in law.
f)    Reworking without authority as well as improper handling always result in the loss of all claims for defects.
g)    If goods are returned to us within the scope of warranty, our approval must be first being obtained to arrange the appointment; otherwise we are authorized to refuse acceptance.

VII. Compensation

a) If we for some reason are authorized to assert compensation due to non-compliance, we can claim without further verification 25% of the sales price of the goods including value added tax as compensation. The Buyer has the right to prove that the damage did not occur or was significantly lower.

VIII. General Limitation of Liability

If we, in deviation from the aforementioned Conditions and due to contractual or statutory basis for a claim, were obliged to pay compensation, we only are liable if willfulness or gross negligence can be proven on our part or that of our management or vicarious agents.

IX. Type samples and tools

a) As an exception, type samples are manufactured; the costs are born in any case by the Buyer. The Buyer is obliged to inform us of his decision immediately following receipt of the sample by wire or telephone. In the case of late notification, costs caused by machine downtime shall be borne be the customer; parts manufactured in the meantime are to be paid and accepted as accrued.
b) If tools are necessary for manufacturing the goods, we will charge the portion of our production costs for these tools as stipulated in the order confirmation.
Models, moulds and tools which we have prepared always become our property without compensation, even if they have been paid for by the Buyer. Entitlement to handing over the tools on the part of the Buyer does not exist.

X. Property rights

a) The Buyer alone bears the responsibility and is liable if a product he has ordered infringes on property rights of third parties unless we were aware of these rights. For our part, there is no review in this respect. The Buyer is to release us from the claims of third parties and pay compensation for damage imposed; especially the Buyer bears the costs of any interventions or the defense against them. Should a third party ban us from manufacture or delivery under reference to property rights to which he is entitled, we have the right – without verifying the circumstance and legal situation – to cease work without this resulting in a justified compensation claim from the Buyer.
b) We are sole owners of the copyrights and property trade rights, where applicable, of the models, moulds, equipment, drafts and drawings we have designed or had designed by third parties on our behalf.
If we are entitled to property rights for the objects delivered or to be delivered or the grant of the rights has been petitioned, the delivery to the Buyer is not connected to any sole distributor licensing; rather we can require the execution of an additional licensing agreement from the Buyer.

XI. Place of performance and jurisdiction

a) The place of performance for all contractual obligations applicable to these terms of business is the seat of the company. This also applies for check and bill of exchange liabilities.
b) For disputes resulting from the business relationship, the local court in 57462 Olpe is the sole place of jurisdiction, regardless of the reason for the dispute, unless mandatory statutory regulations are in opposition.

XII. Other

a)    The Buyer is prohibited from relinquishing claims due to him by us of any type.
b)    For the legal relationships between the Buyer and us, solely the law of the Federal Republic of Germany shall apply. If such laws exist which in some form regulate international purchasing or purchase contracts, their application is excluded, if permissible.
c)    Should a provision stipulated in these general terms and conditions or a provision as part of other agreements be or become invalid, this shall not affect the validity of the remaining provisions or agreements.

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