General Terms of Sale

§ 1 General, Area of Validity

(1) The following general terms of sale (“GTS”) apply to all our business relationships with our customers (hereinafter referred to as: “the purchaser”). The GTS shall only apply when the purchaser refers to a business person (section 14 of the German Civil Code (BGB)), a legal person under public law or to publically owned separate assets.

(2) The GTS apply in particular to agreements on the sale and/or delivery of moveable objects (hereinafter also referred to as: “goods”), irrespective of whether we produce these goods ourselves or buy them from suppliers (sections 433, 651 BGB). The GTS shall also apply in their relevant version as a general agreement for future contracts for the sale and/or the supply of moveable objects with the same purchaser, without requiring us to refer to these in each individual case. We will inform the purchaser of any changes to our GTS without delay.

(3) Our GTS apply exclusively. Any differing, conflicting or supplementary GTS from the purchaser only become an integral part of the agreement if we explicitly agree to this.

This approval requirement shall apply in every case, for instance it also applies if we carry out delivery to the purchaser in full knowledge of the purchaser’s GTS.

(4) Any individual agreements concluded with the purchaser (including subsidiary agreements, additions and changes) always take precedence over these GTS. The content of such agreements is dependent on a written contract or our written confirmation.

(5) Material declarations and announcements that have to be submitted to us by the purchaser upon completion of the contract (e.g. the setting of deadlines, notice of defects, cancellation or reduction) must all be submitted in writing to be considered valid.

(6) References to the validity of legal provisions are for clarification purposes only. Even without any reference of this kind, the legal provisions shall still apply insofar as they are not directly adapted or explicitly excluded in these GTS.

§ 2 Completion of Contract

(1) Our offers are non-binding and subject to change. This also applies if we have supplied the purchaser with catalogues, technical documentation (e.g. drawings, plans, evaluations, calculations, references to DIN norms), other product descriptions or documents – including in electronic form – to which we reserve proprietary rights and copyright.

(2) The order of the goods by the purchaser is recognised as a binding offer of contract. Unless otherwise stipulated in the order, we are entitled to accept this offer of contract within 4 weeks of our receipt of it. Our acceptance can be made in writing (e.g. by order confirmation) or by delivering the goods to the purchaser.

§ 3 Delivery Period and Delivery Default

(1) The delivery period is agreed individually or is stipulated by us upon acceptance of the order.

(2) In the event that we are unable to adhere to binding delivery periods for reasons for which we are not responsible (non-availability of the service), we will immediately advise the purchaser of this change and also inform the purchaser of the new expected delivery period at the same time. We are entitled to withdraw from the contract either partially or entirely if the service is still not available upon completion of the new delivery period. We will immediately reimburse the purchaser for any payment that has already been provided. In particular, failure on the part of our supplier to deliver on time from their own sources shall be deemed to be non-availability of the service if we have concluded a congruent coverage agreement, if there is no culpability on the part of either ourselves or our supplier and if we are not obliged to supply in the particular case.

(3) Delivery default on our part shall be determined in accordance with legal provisions. In any case, however, the purchaser is required to provide a reminder. If we default on delivery the purchaser is entitled to request flat-rate compensation for loss of earnings due to the default. The flat-rate compensation for damages is 0.5% of the net price (delivery value) for each full calendar week it is delayed. However the total compensation is to be no more than 5% of the delivery value of the goods supplied late. We reserve the right to provide evidence that the purchaser has suffered no damage or significantly less damage than the aforementioned flat-rate provision.

(4) The rights of the purchaser in accordance with section 8 of these GTS and our legal rights with particular regard to an exclusion from liability (e.g. on account of it being impossible or unreasonable to provide the service and/or to provide the service retrospectively) remain unaffected.

§ 4 Delivery, Passing of Risk, Acceptance, Delayed Acceptance

(1) Delivery is by FCA (Incoterms 2010) from the warehouse in Hamburg or Hanover where the respective place of fulfilment is located. The goods can be shipped to a different destination at the purchaser's request and at the purchaser's expense. Insofar as no other agreement has been made, we are entitled to decide the type of shipping ourselves (in particular transport company, shipping method, packaging).

(2) The risk of accidental loss and accidental deterioration of the goods is passed on to the purchaser at the latest once the goods have been transferred to the purchaser. However with agreements which provide for delivery by carrier, the risk of accidental loss and accidental deterioration of goods as well as the risk of delay is passed on to the carrier, freight forwarder or other person entrusted with the task of dispatching the goods once these goods have been delivered into their care.

(3) If the purchaser is responsible for delayed acceptance, fails to act cooperatively or if our delivery is delayed for reasons attributable to the buyer, we are entitled to request reimbursement for the damages caused including additional costs (e.g. storage costs). We calculate flat-rate compensation for this purpose at 0.5% per calendar week, beginning with the delivery period or – if there is no delivery period – with the notification of the goods being ready for dispatch.

Any evidence of greater damage and our legal claims (in particular reimbursement for additional costs, appropriate compensation, cancellation) remain unaffected; but the flat-rate is included in any further monetary claims. The purchaser retains the right to provide evidence that we have suffered no damage or significantly less damage than the aforementioned flat-rate provision.

§ 5 Prices and Terms of Payment

(1) Insofar as no individual agreement has been concluded, our current ex-warehouse prices at the time the contract was made, plus VAT, shall apply.

(2) With agreements which provide for delivery by carrier (section 4 para. 1) the purchaser bears the transport costs from the warehouse and the cost of transport insurance, if required by the purchaser. The purchaser shall bear any duties, fees, taxes and other deductions. We do not accept the return of any transport packaging or any other packaging in line with the packaging ordinance. This is the property of the purchaser. The only exceptions are Europool pallets, which are provided for exchange by the purchaser upon delivery and in sufficient quantities.

(3) The purchase price is due and payable within 30 days of an invoice being sent to the purchaser. We reserve the right to request advance payment. The customer receives a proforma invoice if the delivery is against advance payment.

(4) Once the aforementioned payment period has expired the purchaser is in default of payment. During the default period, interest is charged on the purchase price at the applicable statutory rate of default interest. We reserve the right to enforce additional fines for default damage. With regard to commercial traders our claim to commercial default interest (section 353 German Commercial Code (HGB)) remains unaffected.

(5) The purchaser is only entitled to off-set rights and rights of retention insofar as the claim has been legally established or is uncontested. With defects in the delivery the opposing rights of the purchaser, particularly in accordance with section 7 para. 6 sentence 2 of these GTS remain unaffected.

(6) If upon completion of the contract it becomes clear that our claim for the purchase price is endangered by the purchaser’s unsatisfactory performance (e.g. by an application for the opening of insolvency proceedings), we are entitled to withdraw service provision and to withdraw from the contract – setting a deadline if required (section 321 BGB). In respect of contracts for specific items (custom-made items), we are entitled to withdraw immediately; the legal provisions on the dispensability of deadline setting remain unaffected.

§ 6 Reservation of Proprietary Rights

(1) We reserve proprietary rights to the sold goods until full payment has been made of all current and future receivables from the purchase agreement and any current business relationship (secured receivables).

(2) The goods subject to reservation of proprietary rights may be neither sold to third parties nor assigned as security before full payment of the secured receivables has been made. The purchaser must immediately inform us in writing if and to what extent third parties have access to the goods belonging to us.

(3) We are authorised in line with legal provisions to withdraw from the agreement and/or to demand the return of the goods based on reservation of proprietary rights if the purchaser contravenes the agreement, in particular in the event of non-payment of the due purchase price. The demand for return of goods does not include the declaration of withdrawal; we are rather entitled to demand return of goods only and to reserve the right to withdraw from the contract. If the purchaser fails to make due payment of the purchase price, we may only enforce these rights if we have previously set the purchaser an appropriate deadline for payment that has been unsuccessful or if such deadline setting is unnecessary according to the legal provisions.

(4) The purchaser is authorised to sell on and/or to further process the goods subject to reservation of proprietary rights in the normal course of business. In this case the following provisions shall also apply:

(a) The reservation of proprietary rights extends to the goods created by the processing, mixing or combining of our products at their full value, whereby we are deemed to be the producers. If a third party retains the proprietary rights when our goods are processed, mixed or combined with theirs, then we acquire joint ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise the same applies for the resulting product as to the product delivered under reservation of proprietary rights.

(b) The receivables from third parties arising from the resale of the goods or products shall be paid to us by the purchaser as security, either in the full amount or proportionately if there is joint ownership, in accordance with the previous paragraph. We accept the act of transfer. The purchaser’s obligations mentioned in paragraph 2 also apply with regard to the transferred receivables.

(c) Both ourselves and the purchaser are authorised to recover the receivable. We pledge not to recover the receivable as long as the purchaser maintains payment commitments to us, does not default on payment, there is no application to open insolvency proceedings and there is no other impairment to the purchaser's ability to meet commitments. Should any of these situations arise, however, we can demand that the purchaser: reveals the transferred receivables and their recipients to us; provides necessary details for recovery including the relevant documents; and informs the recipients (third parties) of the act of transfer.

(d) If the realisable value of the securities exceeds our receivables by more than 10%, we will release securities of our choice at the purchaser’s request.

§ 7 Claims Against Defects Made by The Purchaser

(1) Legal provisions shall apply to the rights of the purchaser for material defects and defects of title (including wrong delivery and shortfall in delivery as well as incorrect or inadequate assembly) provided that no other stipulation has been made below. In all cases the special provisions for final delivery of the goods to the consumer (supplier's recourse in accordance with sections 478, 479 BGB) shall remain unaffected.

(2) The main basis for our liability for defects is the agreement concluded on the composition of the goods. For the agreement regarding the composition of the goods, the product descriptions named as such (including from the manufacturer) that were supplied to the purchaser before their order or were included in the contract in the same way as these GTS, shall apply. If the composition of goods was not agreed then the legal provisions shall apply to ascertain whether there is a fault or not (section 434 para. 1 sent. 2 and 3 BGB). However we accept no liability for statements made by the manufacturer or other third parties (e.g. advertising statements).

(3) A condition of claims against defects by purchasers is that they have adhered to the legal duties of inspection and complaint notification (sections 377, 381 HGB). If a defect is ascertained upon inspection or later then we must be notified of this in writing without delay. Notification without delay shall be deemed as within two weeks, whereby prompt dispatch of the notification shall suffice as deadline compliance. Irrespective of legal duties of inspection and complaint notification, the purchaser has to provide written notification of obvious defects (including wrong delivery and shortfall in delivery) within two weeks of delivery, whereby prompt dispatch of the notification shall also apply here as deadline compliance. If the purchaser fails to undertake a proper inspection and/or notification of defect, then we are excluded from liability for this defect.

(4) If the item delivered is defective we can first choose if we shall subsequently meet contractual requirements by removing the defect (rectification) or by supplying an item that is free of defects (replacement delivery). Our right to decline to meet contractual requirements subsequently under the legal conditions remains unaffected.

(5) We are entitled to make subsequent fulfilment of contract dependent on whether the purchaser pays the purchase price due. However the purchaser is entitled to withhold an appropriate amount of the purchase price in proportion with the defect found.

(6) The purchaser shall grant us sufficient time and opportunity to subsequently fulfil our contractual obligations, in particular by providing us with the defective product for checking purposes. In the case of replacement delivery, the purchaser must return the defective item to us in accordance with legal provisions. Subsequent fulfilment does not include dismantling or reassembly of the defective item if we were not originally required to assemble the item.

(7) We bear the costs required for checking purposes and to subsequently fulfil our contractual obligations, in particular transport and travel costs, labour costs and the cost of materials (not assembly and dismantling costs) if there is an actual defect. However we can seek reimbursement of any costs incurred if the purchaser makes a demand for the removal of a defect that proves unwarranted.

(8) In urgent cases e.g. where plant safety is endangered or to prevent disproportionate damage, purchasers have the right to repair the damage themselves and to require us to reimburse any reasonable costs incurred. We must be notified immediately if the purchaser applies their own corrective measures, if possible beforehand. Purchasers have no right to apply their own measures if we are entitled to decline a subsequent fulfilment of contractual obligations in accordance with legal provisions.

(9) The purchaser may withdraw from the purchasing contract or reduce the purchase price if subsequent fulfilment has failed or a deadline set by the purchaser for subsequent fulfilment has elapsed without result or is unnecessary according to the legal provisions. However there is no right of withdrawal for negligible defects.

(10) Claims made by the purchaser for damages or compensation for wasted expenses are only admissible in accordance with section 8 and are otherwise excluded.

§ 8 Other Liability

(1) Our liability for compensation is limited to the stipulation under section 8, irrespective of the legal reasons, in particular because delivery is impossible, delayed, deficient or incorrect; there is an infringement of the contract, of obligations in contract negotiations or non-permissible action, insofar as we are at fault in each case.

Insofar as there is no infringement of essential contractual obligations, we are not liable in the case of simple negligence of our bodies, legal representatives, employees or other agents. Essential contractual duties include the prompt delivery of the goods, free of defects that would more than only superficially impair the functionality or usability of the goods as well as consulting duties and duties of care and protection that allow the purchaser to use the goods in keeping with the agreement or serve to ensure the safety of the purchaser's staff or the protection of their property from serious damage.

(3) Insofar as we are liable for damages based on the merits of the individual case in accordance with section 8 para. 2 of these GTS, this liability shall be restricted to damage that we anticipated when the agreement was made as a possible consequence of an infringement of the agreement or that we should have foreseen when applying due care and attention. Indirect or secondary damage that is incurred as a consequence of defects in the item delivered are also only replaceable if the damage is to be typically expected in the course of the anticipated use of item delivered.

(4) In the event of liability for simple negligence, our liability for damages and resulting additional financial losses shall be limited to an amount of €1,000,000 per incident (in accordance with the current amount of cover provided by our product liability insurance or liability insurance). This includes infringement of essential contractual obligations.

(5) The aforementioned exemptions from and restrictions on liability apply in equal measure to our bodies, legal representatives, employees and other agents.

(6) Insofar as we provide technical information or consulting services and this information or consulting is not part of the service we have agreed to provide in the contract, this shall be free of charge and excluded from any liability.

(7) The restrictions on this section 8 do not apply to the seller’s liability on account of deliberate actions, for guaranteed features, on account of endangerment to life, risk of injury or to health or in accordance with the law on product liability.

(8) The purchaser may only withdraw from the contract or serve notice on account of a breach of contract that does not involve a defect if we are at fault with that breach of contract. A free right to serve notice on the part of the purchaser (in particular in accordance with sections 651, 649 BGB) is excluded. The legal provisions and consequences shall otherwise apply. Insofar as there is no deliberate infringement of the contract, our liability for damages is limited to the anticipated damages that typically arise.

§ 9 Limitation Period

(1) In derogation of section 438 para. 1 no. 3 BGB, the general limitation period for claims relating to defects of goods or title is one year after delivery.

(2) The aforementioned limitation periods for purchasing rights also apply to contractual and non-contractual damages claims on the part of the purchaser that are based on a defect in the product, unless application of the regular legal limitation period (sections 195, 199 BGB) would result in a shorter limitation period in the individual instance. The limitation periods for the product liability law always remain unaffected. Otherwise the legal limitation periods in accordance with section 8 shall apply exclusively for damages claims on the part of the purchaser.

§ 10 Applicable Law and Place of Jurisdiction

(1) For these GTS and all legal relationships between ourselves and the purchaser the law of the Federal Republic of Germany, excluding international law and the UN purchasing law in particular, shall apply. The conditions for and the effects of the reservation of proprietary rights in accordance with section 6 are subject to the law of the relevant storage location of the item if the choice of applicable law in favour of German law is not permitted or is legally void.

(2) The final decision on all – contractual and non-contractual – disputes from or in the context of contracts to which these GTS are meant to apply is made in accordance with the arbitration code of the German Institution of Arbitration (DIS) under exclusion of regular legal proceedings. The arbitration court comprises three adjudicators and one adjudicator for disputes with a value in litigation of less than €5,000. The location for arbitration proceedings is Hamburg and the language is German. However we are authorised to take legal actions in individual cases before the responsible or state courts located at the place of business of the purchaser or at other courts empowered by the law.