General Terms and Conditions (Commercial Customers) - Version: August 2010 -

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I. Area of applicability

  1. The terms and conditions below apply exclusively to companies, legal entities under public law, or public law special funds, as specified in Section 310 paragraph 1 of the German Civil Code (BGB). They apply only for contracts that are concluded with customers who are not consumers as stipulated in Section 13 of the German Civil Code (BGB).
  2. Farmers who are active full-time or part-time, who earn income from their activity are not consumers in terms of the law.
  3. These terms and conditions shall apply for all contracts, deliveries, and other services, including paid or unpaid consulting services, unless they are changed or excluded with the express, written consent of the seller.
  4. The following delivery conditions shall apply exclusively. We hereby exclude any counter confirmations, counter quotations, or other references on the part of buyer to buyer’s terms and conditions. Nor will the buyer’s conditions become a component of the contract if the seller does not exclude them again and the seller provides the contractually obligated delivery / service without reservation.
  5. Agreements that deviate from these conditions shall be recorded in the order confirmation.


II. Quotation and scope of delivery

  1. The seller’s quotations shall always subject to change. The documents that are part of the quotation, such as illustrations, drawings, weight and dimension specifications, are only approximately authoritative, unless they shall be expressly designated as binding. Changes / deviations are unreasonable and are no longer accepted by the seller, if they shall exceed the scope that is usual in the trade. Power ratings and operating costs shall be specified as average values. The seller shall reserve the property rights and copyrights for cost estimates, drawings, and other documents; cost estimates, drawings, and other documents shall not be made accessible to third parties.
  2. The sales contract shall be concluded when the seller has confirmed acceptance of the purchase order for the object of purchase that is described in more detail, in writing or has executed the delivery.
  3. All agreements made between seller and buyer shall be stipulated in writing in the respective delivery contract. The same shall also apply for ancillary agreements, assurances, and retrospective contract changes.
  4. The seller shall reserve the right to make changes in the design and form of the delivery object, if the delivery object is not significantly changed and the changes are reasonable for the buyer.
  5. The information contained in our catalogs, mailings, price lists, etc. shall only become content of the contract if we make express reference in this regard.
  6. Before the contract is concluded the buyer shall be obligated inform us of all legal, government agency, and other regulations in buyer’s country that must be complied with for contract execution.
  7. Plans and other documents that are transferred by us to the buyer shall remain our property. They shall only be used in the scope that we have permitted; they shall not be duplicated, or made accessible to third parties.


 III. Price and payment

  1. In the absence of a special agreement the prices shall apply ex warehouse of the seller or ex works, exclusive of packaging and other ancillary costs. All prices listed are exclusive of the current VAT. If delivery shall be executed more than four months after the contract is concluded, the seller shall be authorized to demand negotiation of a reassessment of the price, if seller’s upstream suppliers raise their prices, or if there are unexpected increases in wages and transport costs, etc. The seller shall only be bound to the agreed price for the defined delivery time - at least however for four months. Seller shall be authorized to demand reimbursement of additional expenses incurred by the seller due to buyer’s delay of acceptance.
  2. In the absence of a special agreement, payment shall be made after delivery, or after provision and receipt of the invoice, without any deductions, to the seller’s bank account; wire transfer fees shall be the buyer’s responsibility. The buyer’s rights to withhold arising form Section 320 of the German Civil Code (BGB) shall be unaffected by the above provision. Discount agreements shall only apply if the buyer is not in arrears with payments for earlier deliveries.
  3. The buyer shall be authorized to offset only if buyer’s counterclaims have been made legally binding or are uncontested. If a notification of defect shall be asserted payments of the seller shall only be withheld in a scope that is in an appropriate ratio to the defects that have occurred.
  4. Payments to seller’s employees shall only relieve buyer of buyer’s obligations under the contract if seller’s employee shall present a written authority to collect funds.
  5. In addition to the legal period specified in Section 286, paragraph 3 of the German Civil Code (BGB) and seller’s reminder, seller shall also authorized to put buyer in default through a due date for payment that can be ascertained on the basis of calendar, as stipulated in Section 286 par. 2 of the German Civil Code (BGB).
  6. If the invoice amount is not paid within 10 calendar days at the latest, from the invoice date or a different due date, we shall be authorized to bill interest on arrears in the amount shown, however at least in the amount of 8 % over the prime rate of the European Central Bank without the necessity of a separate reminder.


IV. Delivery time

  1. Delivery times and dates shall only be bindingly agreed if they have been expressly designated in writing as binding, by the seller. The delivery time shall start when the contract is concluded, however not prior to provision of any documents, approvals, releases, that must be provided by the buyer, or an agreed advance payment.
  2. Our delivery obligation shall always include the reservation of timely and proper delivery to us.
  3. The delivery time shall be appropriately extended if there are measures associated with legal labor disputes, strikes and lockout, and if unforeseen obstacles occur that are beyond the control of the seller or seller’s vicarious agents; if such obstacles verifiably have an impact on the delivery of the sold object.
  4. The same shall apply if the seller, on his side does not receive timely delivery of goods. The seller shall be authorized to withdraw from the contract if the manufacturer does not deliver to the seller. The above shall not apply if the seller is responsible for the non-delivery (e.g. payment in arrears).
  5. The prerequisite for compliance with the delivery period shall be fulfillment of the buyer’s contractual obligations.
  6. If an agreed delivery or unload time is exceeded without a delivery obstruction being present, then the buyer shall grant us an appropriate grace period of at least two weeks. If we culpably do not comply with this grace period then the buyer shall be authorized to withdraw from the contract; however the buyer shall not be authorized to enforce claims for damages arising from non-fulfillment or arrears, except in the case of intent or gross negligence on our part.
  7. Seller shall not be responsible for delayed or omitted (impossibility) deliveries due to the culpability of buyer's upstream supplier - with the exception of selection or monitoring culpability. Sentence 1 shall not apply if the relationship between buyer and seller shall be determined in accordance with the German law on contracts for work & services.


V. Transfer of risk and transport

  1. The goods shall be transported at buyer’s risk, in every case.
  2. Dispatch route and shipping material shall be at the seller’s discretion- unless otherwise agreed. The goods shall be insured at the request and expense of the buyer.
  3. If there is a contract of sale involving the carriage of goods the risk shall be transferred to the buyer with transfer of the goods to the freight forwarder, or freight carrier, at the latest however when the goods leave the warehouse, or in the case of direct shipment when the goods leave the plant. This shall also apply if partial shipments are made or if the seller has taken over additional services.
  4. If shipment is delayed due to circumstances for which buyer is responsible then the risk shall be transferred to the customer from the day that the seller is ready to ship. Buyer shall be obligated to accept delivered objects even if they show insignificant defects regardless of the rights set forth in Section VII (notice of defect and liability for defects).
  5. Partial deliveries shall be permitted, if this is reasonable for the customer.


VI. Retention of title

  1. The seller shall retain the title until full payment of all receivables arising from the business agreement with the buyer.
  2. Purchaser shall be obligated to treat the object of purchase with care and to sufficiently insure the object of purchase at its new value at buyer’s own risk, against fire, water damage, and theft. The existence of the insurance policy shall be verified, if not then the seller shall be authorized to insure the object of purchase on seller’s part at the buyer’s expense. The buyer shall be obligated to assign any indemnity claims to the seller.
  3. The buyer shall not pledge the object of purchase, nor transfer the object of sale as security without the agreement of the seller. The buyer shall be obligated to notify the seller, in writing without delay in the event of pledges or other interventions of third parties so that the seller can take legal action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). Should the third party not be in a position to reimburse the court and out-of-court costs incurred as a result of a legal action in accordance with Section 771 of the German Code of Civil Procedure (ZPO), the buyer shall be obligated to pay the court and out-of-court costs.
  4. Buyer shall be entitled to resell the object of sale in an orderly business procedure. Buyer at this time assigns to us all claims, amounting to the final invoice amount (including VAT) of our claim, which accrue for buyer from the resale vis-à-vis buyer’s customers or third parties, regardless of whether the object of purchase was resold with or without further processing. Buyer shall remain entitled to collect this claim also following the assignment. Seller’s authorization to collect the claims himself, shall remain unaffected by the preceding provision, however seller shall be obligated to not collect the receivables as long as the buyer properly discharges buyer’s payment obligations. If this is not the case, the seller shall be authorized to demand that buyer inform seller of the assigned claims and the respective debtors, to provide all information necessary for the collection, to hand over the necessary documents to us, and to inform the debtors of the assignment.
  5. If buyer violates contract provisions, particularly if buyer shall be in arrears with payments, the seller shall be authorized to take back the goods, after issuing a reminder, and the buyer shall be obligated to turn the goods over to seller without delay. With the take back as well as in the case of the object being pledged by the seller, a right to withdraw from the contract shall only exist if the seller exclusively declares this in writing. Section 449 paragraph 2 of the German Civil Code (BGB) shall not apply.
  6. All costs associated with the take back and sale of the object of sale shall be the buyer’s responsibility. The costs associated with recovery shall be 10 % of the proceeds of sale, including VAT. These costs shall be assessed higher or lower if the seller verifies higher or lower costs. The proceeds shall be credited to the buyer after deducting the costs and other receivables of the seller arising from the purchase contract.


VII. Notice of defect and liability for defects

The seller shall only be liable for defects as follows:

  1. The buyer shall be obligated to examine the received goods for quantity, condition, and assured characteristics, immediately after the goods are delivered. The buyer shall be obligated to provide notice of defect for apparent defects without delay, at the latest however 10 days after receipt of the goods, through written notification to the buyer. If the seller for both parties is a commercial firm then Section 377 of the German Civil Code (BGB) shall apply.
  2. The provisions in accordance with paragraph 1a) shall also apply in the event of over-delivery and under-delivery, the same shall apply for any incorrect deliveries.
  3. If a defect is present and notice of defect has been provided in a timely manner, then the buyer shall be authorized to assert either subsequent fulfillment, in the form of defect rectification, or delivery of a new object. Costs incurred for the required rectification of defect shall be our responsibility. In the event of replacement of the entire object of purchase in the course of subsequent fulfillment, the seller shall have a claim against the buyer for unrestricted loss-of-use indemnification.
    d) The period of limitation for warranty claims shall expire 12 months after buyer receives the goods we have delivered. This shall not apply if the buyer does not fulfill buyer’s obligation to provide notice of apparent defects without delay.
  4. No guarantee shall be assumed for damage that occurs for the following reasons: Unsuitable or improper use, defective assembly or placing in service on the part of the buyer or third parties, normal wear - particularly of wear parts -, faulty or negligent treatment, unsuitable operating materials, replacement materials, defective construction tasks, unsuitable building lot, chemical, electronic, or electrical influences, if they are not the fault of the seller.
  5. In the event of defect rectification, the buyer shall be obligated to specify an appropriate period for the necessary tasks. If the buyer refuses to specify an appropriate period for rectification of the defect, then seller shall be released from the liability for defect. The buyer shall only be authorized to have the defect rectified by a third party and to demand reimbursement of the necessary costs from the seller in urgent cases involving compromised operational reliability and to avert disproportionately greater damages, whereby the seller must be notified immediately, or if the seller is in arrears with the defect rectification. The liability for consequences that occur shall be nullified due to improper changes, or changes or repairs made without the sellers permission by the buyer or a third party.
  6. In the event of willful or grossly negligent impairment we shall be liable in accordance with the statutory regulations. The same shall also apply if we violate a significant contract obligation. The liability for compensation of the damage instead of fulfillment shall remain unaffected. With the exception of liability for intent - liability in all cases cited above shall be limited to the scope of foreseeable, typically occurring damage. The legal liability due to personal injury - regardless of type - shall remain unaffected. Buyer’s claims arising from liability in accordance with the product liability law, shall also remain unaffected. The liability restrictions cited above shall also apply for all other claims - regardless of the legal grounds upon which they shall be asserted against us.
  7. If subsequent fulfillment fails, or if subsequent fulfillment shall be impossible, in the case of failure, or refusal and culpable delay of the improvement, the buyer shall be authorized to withdraw from the contract and demand compensation for damages instead of fulfillment, if the contract obligation was not significant. Purchaser’s right of mitigation shall remain unaffected.
  8. For used goods the seller shall only assume liability for defect if this has been expressly agreed in writing with the buyer.


VIII. General limit of liability

  1. The seller’s liability relative to the buyer, unless otherwise agreed above, shall be based on the statutory regulations. This shall apply regardless of the legal nature of the asserted claim. If claims against the seller are excluded or restricted this shall also apply in favor of the personal liability of employees, vicarious agents or representatives of the seller.
  2. The claims that the buyer must assert against the seller shall be subject to a limitation period in accordance with statutory regulations if nothing to the contrary is regulated by these terms and conditions. However there shall be an exclusion period of six months if the seller has rejected a claim of the buyer as unsubstantiated, in writing.


IX. Other

  1. The place of fulfillment and exclusive place of jurisdiction for deliveries and payments, as well as for all disputes that arise between the parties shall be the seller’s headquarters location.
  2. The relationships between the contracting parties shall be governed exclusively in accordance with the laws of the Federal Republic of Germany, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
  3. Should an individual provision of these terms and conditions, or a provision as part of other agreements be ineffective, or become ineffective, or should there be a loophole, then the effectiveness of the remaining provisions shall remain hereby unaffected. Ineffective provisions shall be replaced by such effective provisions that are suitable for realizing the economic purpose of the inapplicable provision to the extent possible.