General Terms and Conditions

I General

1. The following conditions of sale apply to all our offers, deliveries and services, including information and consultation. They also apply to future business relations with customers, even if we do not refer expressly to them upon conclusion of contract.

2. Other conditions – particularly our customers’ general purchase conditions – do not apply, even if we do not expressly object to them when presented to us. Oral agreements apply only after our written confirmation. This also applies to the renunciation of the written form requirement.

3. The customer accepts our General Terms and Conditions upon accepting the goods at the latest.

II Conclusion of contract

1. Our offers are subject to change unless a period of commitment is expressly agreed. The contractual relationship arises only when we send a confirmation of the order to the customer which corresponds to his/her order in its essential components. Should our delivery take place without confirmation in advance, the contract arises by rendering the service, whereby in terms of contractual conditions our invoice is simultaneously considered the order confirmation.

2. These terms and conditions form a component of any offer from us.

3. Documents, drawings, units of weight or measurement, data that are part of the offer; references to norms and statements in advertising material are not indications of properties and condition, promises of characteristics nor warranties unless expressly categorized in writing as such. Promises relating to product properties and condition become the subject of the contract only if expressly confirmed in writing. This also applies to statements in catalogues or brochures.

4. The electronic signature according to the relevant state of the art and in accordance with legal regulations is admissible for an effective conclusion of contract. It replaces the written form requirement and also maintains validity in case of changes in the contract.

III Property rights, models, and matrixes

1. Drawings, models, and samples included in the offers remain our property. Rights of use in them are not transferred to the customer. They may only be made accessible to third parties with our consent und must be handed back to us immediately if no contractual relationship has arisen.

2. In case of custom-made products, the customer is to check to what extent the components ordered are protected by property rights of third parties. In case rights of third parties are impaired when executing the order placed by the customer, the customer shall indemnify us against any claims asserted by third parties.

3. For international transactions, we do not accept any liability for the freedom of the goods from any rights or claims of third parties unknown to us. The examination of the property rights situation in the country of destination lies within the customer’s responsibility. If the purchaser knows about existing property rights, he/she shall inform us about them immediately.

4. We remain the owner of all development results connected with our delivery items. Rights of use are thus not transferred to the customer. Furthermore, we reserve the right to unlimited use of all models and tools manufactured by us or on our behalf in conjunction with the respective customer order; these remain our property.

IV Prices

1. The prices are net prices and apply “ex works” in accordance with INCOTERMS 2000, company headquarters Neuwied, excluding packaging and transport insurance.

2. For small quantities we reserve the right to charge minimum quantity charges.

3. After expiration of one month after order confirmation, we are entitled to increase the prices due to increases in labour, manufacturing and/or materials costs. In case of significant price increases, the customer is entitled to withdraw from the purchase contract. In this case, services already rendered by us in the form of custom-made products have to be reimbursed by the customer.

V Payments

1. Any payments are due 20 days after the date of the invoice and shall be paid without any deductions. The receipt of the payment is decisive for clearance. Bills of exchange and cheques will only be accepted on the basis of a related agreement and only on account of payment. In these cases, clearance only takes place once we conclusively have the specific amount at our disposal. Any bill of exchange, cheque, and discount charges as well as any further costs shall be borne exclusively by the customer.

2. Default of payment occurs 20 days after settlement date of the invoice. If the time of receipt of the invoice is unclear, the debtor falls into arrears at the latest 30 days after settlement date and receipt of the delivery or service.

3. Should the customer fall into arrears with a payment, we are entitled, at our discretion, to charge default interest to the amount of 8 percentage points above the base lending rate or replacement of the precisely calculated damage resulting for us from the delay. Sect. 353 HGB [German Commercial Code] remains unaffected.

4. Notwithstanding any provisions from our customer to the contrary, we are entitled to offset their payment in the first instance against any older remaining debts that may exist. If interest and costs have already been incurred, we are entitled to offset our customer’s payments first towards the costs, then towards the interest, and finally towards the principal claim.

5- The customer is only entitled to a right of offsetting or retention if his/her counterclaims are legally established, undisputed or accepted by us.

6. Assignment of any customer claims against us towards third parties requires our express written consent for its effectiveness. Sect. 354a HGB remains unaffected.

7. If after conclusion of a contract, a substantial deterioration in the financial circumstances of the customer becomes known to us (e.g. application for opening insolvency proceedings, negative credit reports or a delay in payment), we are entitled to carry out pending deliveries or services only against advance payment or an appropriate security, whereby possible terms of delivery or service are extended respectively or deadlines postponed accordingly. If delivery has already taken place, we may demand immediate payment of our invoice.

8. If we are obliged to advance performance, and if circumstances become known to us after conclusion of the contract according to which our payment claim is endangered through a lack of performance capability on the customer’s part, we can stop the sale and processing of the goods delivered on the basis of the agreed reserve goods in Stipulation IX and demand their return or the transfer of the direct ownership of the goods delivered at the customer’s costs and revoke the authorisation of forfeiture under the prerequisites of Stipulation IX, paragraph 8. Already at this point the customer authorises us in the cases named to enter his property and pick up the goods delivered. Taking back the goods is only a result of withdrawing from the contract if we expressly declare this.

9. In case of payment delay, after written notification we can stop fulfilling our obligations until we receive the payments. After a suitable deadline, we are also entitled to withdrawal in this case.

VI Shipment and passage of risk

1. Unless agreed otherwise in writing, the “ex works” delivery clause (INCOTERMS 2000) applies. This also applies when we have committed to taking over the transport costs.

2. Only upon express wish of our customer will we cover delivery with transport insurance; the costs incurred to do so will be borne by our customer.

3. Packaging is determined by us according to reasonable discretion. The customer will be charged with the costs for packaging.

4. Goods announced as ready for dispatch are to be taken over without delay; we are otherwise entitled to ship them at our own option or to store them at rates prevailing among shippers and at the customer’s own risk. We are also entitled to the latter if the shipping we have taken on cannot be executed without debt on our side. The goods are considered delivered one week after the beginning of storage.

5. In the absence of particular instructions, the selection of the means and route of transportation takes place at our discretion.

6. Upon handing over to the railway, shipping company, or air or transport carrier and/or a week before the beginning of storage, at the latest, however, upon leaving the factory or warehouse, the risk is transferred to our customers, even if we have taken over delivery.

VII Delivery dates and time periods

1. The delivery dates and time periods stated for our deliveries and services are non-binding unless otherwise expressly agreed in writing. The terms begin to apply only once an agreement has been reached about the details of execution required for rendering our service, if the customer has supplied the information, documents, and materials to be obtained by him/her and – if advance payment or a down payment was agreed – the customer has paid the agreed price or the down payment. Non-cooperation as well as requests for changes by the customer result in a commensurate postponement of the delivery dates or extension of the time periods as applicable by at least the timeframe that the customer is in arrears with his obligations.

2. Unpredictable and unavoidable events (e.g., war, war-like conditions, lack of energy or raw materials, sabotage, strike), as well as any other business disruptions or official actions for which we are not responsible, release us from the delivery and service obligation for the duration of the event, even if they arise during a delay already existing. This renders terms and deadlines extended to a commensurate extent. This also applies to late or incorrect deliveries or services from our suppliers for which we are not responsible.

3. In case of non-compliance with a binding time period for reasons we are responsible for, the customer may – provided he/she can prove that a damage resulted from the delay – claim a compensation for delay for each completed week of delay of 0.5 percent, up to the amount of a total of 5 percent, of the value of that part of the delivery with which we have fallen behind. Claims of the customer exceeding this are excluded in all cases of delayed delivery, even after expiry of an extension we may have set. This does not apply where there is mandatory liability, e.g., in cases of intent, gross negligence or damage to life, body and health. The right of the customer to withdraw after effectless expiry of an extension set by us remains unaffected. The customer is obligated at our request to declare within an appropriate time period whether he/she is withdrawing from the contract due to delay of the delivery and/or demands compensation instead of the service or insists upon delivery.

4. If the customer defaults in acceptance or if he/she culpably infringes other obligations to cooperate, we are entitled to demand the damage incurred to us including possible additional expenditures. In this case, at that point in time at which the customer defaults the risk of an accidental loss or an accidental deterioration of the item sold passes to him/her.

VIII Retention of title

1. We retain title to all goods delivered (“goods subject to retention of title”), specifically also related balance claims, until complete payment of all receivables to which we are entitled. This also applies if payments are made on specially designated receivables. If the customer defaults, we are entitled to demand surrender of the goods delivered. The customer will bear the costs thereof. This does not apply if the customer has filed for bankruptcy or bankruptcy proceedings have been opened on the basis of which we are not entitled to reclaim the goods delivered.

2. Taking back the goods and/or asserting the retention of title does not require any notice of repudiation of contract.

3. Processing of the goods delivered will always be executed for us by the customer. If the goods subject to retention of title are processed or inseparably linked with other objects not belonging to us, we acquire co-ownership in the new products at the ratio of the invoice value of the goods to the other processed or mixed objects at the time of processing.

4. If our title expires through linkage or commingling, the customer will already transfer to us the property rights to which he/she is entitled to the new inventory or the object to the scope of the invoice value of the goods subject to retention of title, and will store them for us without charge. The co-ownership rights in accordance with this are considered goods subject to retention of title in terms of subsection 1.

5. The customer may only sell the goods subject to retention of title in proper business transactions at his/her normal terms and conditions and as long as he/she is not in default, provided that the receivables resulting from that resale pass over to us in accordance with subsections 6. and 7. below. He/she is not entitled to other dispositions of the goods subject to retention of title.

6. The customer’s receivables from the resale of the goods subject to retention of title are transferred herewith to us. We accept the assignment. They serve as a security to the same scope as the goods subject to retention of title.

7. If the customer sells the customer’s goods subject to retention of title together with other goods not delivered by us, the assignment of the receivables from the resale applies only to the amount of our invoice value of the goods subject to retention of title sold. Upon selling goods to which we have co-ownership rights in accordance with subsection 2., the assignment of the receivables applies to the amount of these co-ownership shares.

8. The customer is entitled to recover receivables from the sale in accordance with subsections 5. and 6. until our revocation. We have the right to revocation in those cases named in Stipulation V. when the customer defaults on payment, an application to open bankruptcy proceedings has been submitted, or there is a suspension of payment. In these cases, the customer is obliged to inform us without delay of the assigned receivables and their debtors, to give all full particulars required to revoke, and to inform the debtors of the revocation. The customer is in no case authorised to assign the receivables.

9. If the value of the existing securities exceeds the secured receivables in total by more than 20%, we are in this respect obliged to release securities of our choice. The customer must inform us without delay of a garnishment or other infringements by third parties.

IX Warranty for Material Defects

1. Within the scope of the stipulations below, we furnish a warranty that the products delivered and services rendered are not subject to defects at the time of passage of risk of the delivery or service, which defects would take away or substantially reduce the value or suitability for common use or the use assumed in the contract.

2. If on passage of risk our services and deliveries are subject to defects, we will, at our discretion, remedy without charge or re-deliver or re-render, as appropriate. Wear due to normal use and defects caused by improper use, improper handling, improper storage as well as non-compliance with instructions from the manufacturer, or for assembly or operation, are excluded from the warranty. The right to warranty becomes void in case of improper handling by the customer or by third parties engaged by him/her.

3. Unless expressly agreed otherwise in writing, any details about our products, in particular figures, drawings, technical data and references to standards and specifications contained in our offers and brochures, do not represent any guarantee for properties and condition and/or durability in terms of Sects. 443, 276 BGB [German Civil Code], but are only descriptions or identifications. The same applies upon delivery of specimens and samples.

4. The customer must examine the goods immediately after delivery, even if specimens or samples were handed over in advance, and immediately inform us in writing about defects or quantity differences detected. Otherwise the goods are considered accepted unless there are defects which were not detectable during this examination. The client is to contest hidden defects immediately upon discovering the flaw.

5. We will be given the opportunity to determine the defect contested. In urgent cases of endangering operating safety or to avert disproportionately great damage for the customer, we are to determine the defect contested immediately. Rejected goods are to be sent back to us immediately upon request. If the customer does not comply with these obligations or undertakes changes in goods which have already been rejected without our consent, he loses any rights he may have due to material defects.

6. If we do not assume liability for defects or do not assume it within a suitable time period or if the rectification remains unsuccessful at first, the customer may set a last deadline in writing within which we have to fulfil our obligations. A deadline is not required if this would be inacceptable for the customer. After unsuccessful expiry of this deadline, the customer can at his/her option demand a reduction in price, withdraw from the contract or undertake the necessary rectification him-/herself or by a third party at our cost and risk. If the rectification was successfully carried out by the customer or a third party, all customer claims are settled upon reimbursement of the required costs to him/her.

7. We take over the costs accruing for the purpose of remediation (in particular transport, shipping, work, and material costs). If these costs increase because the objects were transported after our delivery to another location than the customer’s delivery location, he/she has to bear the additional costs, unless the transfer corresponds to the intended use. Insofar as we rectify due to a defect, the customer has to enable the execution of work without delay and provide us with the rejected goods for examination and processing.

8. Costs resulting from claims that are possibly unjustified are borne by the customer. These will be charged at cost.

9. Should the rectification or replacement delivery fail, the customer is entitled to claim reduction of payment or withdraw from the contract without prejudice for possible claims for damages.

10. Warranty claims are excluded in case of only insubstantial deviations from the agreed properties and condition or only insubstantial impairment of usability.

11. Further customer claims are excluded in accordance with Stipulation IX.

12. Proving a defect is incumbent upon the customer.

X Representative authority

Our field representatives are authorized by us only to accept orders, but not to accept further declarations of intent by the customer nor to conclude sales contracts or give other declarations for us related to legal relations.

XIII General limitation of liability

1. Unless arising differently below, other and further claims of the customer against us, irrespective on which legal grounds, are excluded, particularly due to infringement of duties from the contractual obligation and due to unauthorised action.

2. This limitation of liability does not apply if liability is compulsory by law, e.g., in accordance with the Product Liability Act, by intent, by gross negligence of the legal representatives or executive staff, as well as in case of culpable infringement of essential contractual duties. In case of culpable infringement of essential contractual duties, we are liable – except in cases of intent or gross negligence on the part of our legal representatives or executive staff—only for the damage typical and reasonably foreseeable for this type of contract. The exclusion of liability also does not apply in cases of damage to life, body, or health or due to the lack of a guaranteed property or condition if and to the extent that the warranty aims to protect the customer against damages that did not arise on the goods delivered themselves.

3. To the extent that our liability is excluded or limited, this also applies for the personal liability of our staff, employees, personnel, legal representatives and vicarious agents.

4. Indemnity and materials defects claims to which the customer is entitled towards us expire one year after delivery of the goods to the customer. This does not apply if the law in Sect. 438 Par. 1 No. 2 und Sect. 479 Par. 1 BGB [German Civil Code] stipulates longer time periods nor in cases of infringement of life, body or health, nor for an intentional or grossly negligent breach of duty on our part nor for malicious omission of a defect. The legal stipulations on the suspending, stopping and beginning anew the time periods of the statute of limitations remain unaffected. For indemnity claims in accordance with the Product Liability Act, the legal regulations on the statute of limitations apply. The legal regulations also apply in case of intentional and grossly negligent breaches of duty.

XII Miscellaneous

1. The legal relationship between the parties is established exclusively according to German law, excluding the UN Law on the International Sale of Goods (UNCITRAL/CISG).

2. Inasmuch as the customer is a businessman, the jurisdiction is Neuwied. We are entitled, however, to bring action against the customer at the court at his headquarters. Unless otherwise stated in the order confirmation, the place of delivery for our services is the site of our delivery plant. For payment obligations, the place of delivery is Neuwied.

3. If individual stipulations in these general terms and conditions prove to be ineffective or void in part or as a whole, the contractual parties commit to agreeing to a stipulation which most closely achieves the spirit and purpose of the ineffective or void stipulation.

4. The customer declares him-/herself in agreement and informed that any data relating to the business relationship concerning him/her have been saved within the scope of electronic data processing.