Prüffeld

General Terms and Conditions of Sale and Delivery

June 2006

I.
General-Scope

  1. The following conditions shall apply exclusively and to all offers and supplies.
    Conflicting conditions of the customer are not binding, even if the supplier does not
    explicitly contradict or if the supplier executes the delivery without reservations,
    unless the conflicting conditions are expressly designated as binding in writing by
    the supplier.
  2. The supplier maintains title and copyright with regard to all quotations, drawings and
    other documents. Such documents shall not be made available to third parties
    without the supplier's prior consent. There are no oral ancillary agreements.
  3. Our general terms are applied to any agreement with any person acting in performance of her/his commercial or independent professional business when entering into any respective agreement and any public legal entity or any public separate estate.

II.
Bidding documents

We retain ownership rights and copyrights to any images, drafts, calculations or other documents. This also applies to any written documents marked as “confidential”. The customer shall not make such documents available to third parties without our express written permission.

III.
Prices and Terms of payment

  1. In the absence of a specific agreement to the contrary, prices are ex works
    including  loading ex works,  however,  excluding packaging. The supplier does
    not accept to take the packaging back.
  2. Additionally, value added tax in the respective statutory amount has to be added.
  3. Unless expressly agreed upon otherwise, payments shall be made in cash without any deductions at the suppliers domicile promptly upon the invoice date or the submission of the dispatch note. With regard to delay in payment statutory rules shall apply. If the customer is in default with payments, the supplier shall be entitled to request payment of default interest in the amount of 8 % per year over the respective base discount rate.
  4. The customer shall only be permitted to offset if counter-claims have been confirmed by a final judgement, are ready for a decision, are undisputed or are acknowledged by the supplier. Furthermore, the customer shall only have a right of retention if his counter-claim results from the same contractual relationship.
  5. The following applies additionally for deliveries abroad:
    • Prices are quoted without value at tax. The respective statutory value at a tax is additionally added to the price in the case of tax liability. We take on all other public charge (taxes, fees, tariffs, etc.) as far as they accrue in Germany. The customer shall bare them in all other cases.
    • Bank charges shall be paid by the customer.
    • The entire remaining payment becomes due, if the payment is not made in good time in the case of agreed partial payment.

IV.
Delivery, Place of Delivery,
Delivery Time, Delivery defaults
Duty to inspection and objection

  1. Place of delivery is ex works.
  2. The goods shall be transported uninsured and in any event at the risk of the customer. Any costs arising therefrom shall be at the expense of the customer only.
  3. Adherence to our delivery obligations further more requires the timely and proper adherence of the customer to any obligation upon him. The start of the delivery time indicated by the supplier requires the clarification of all
    technical issues.
  4. Any inability to supply as a result of force majeure or other unforeseen incidents outside our responsibility including without limitation, strike, lock out, acts of public authorities shall for their duration and in accordance with the impact relieve us from the obligation to comply with any agreed time for delivery.
  5. We shall be liable pursuant to statutory provisions in so far as the customer claims damages bases on intentional or grossly negligent conduct of us including intentional or grossly negligent conduct of the agents or of persons employed by the debtor in the performance of his obligation. In other cases the liability for damages should be limited refered to in subjection for above. The right to resign the agreement remains unaffected.
  6. The customer shall explain within an appropriate period, if he resigns the agreement, claims damages or the reduction of the sales price.
  7. If the customer resigns the agreement unauthorised, we are entitled to claim damages of 30 % of the invoice amount. The customer is entitled to prove a smaller damage.

V.
Taking of delivery and Passage of Risk

  1. Unless dealt with otherwise in the order confirmation, the parties agree on a delivery
    ex works, i. e. the passage of risk shall occur at the latest with the shipment of the
    good to the customer, even in case partial deliveries are made or if the supplier has
    taken over other services, such as the shipment costs or the delivery or the
    installation. Upon request of the customer, at his expense, the delivery may be
    insured by the supplier against theft, destruction, transport, fire and water damages
    as well as other insurable risks.
  2. If the delivery is delayed for reasons as to which the customer is liable, the risk shall
    pass to the customer at the date of the dispatch readiness.
  3. Partial deliveries shall be permitted.

VI.
Defects

  1. The claiming of liability for defects by the customer requires that he has complied with his duty to examine and object to defects orderly pursuant to sec. 377 German Commercial Code. 
  2. If the good delivered is defective, the supplier may at his option provide for subsequent delivery as removal of the defect or delivery of another brand new good free of defects. In case of removal of the defect the supplier shall bare the expensive up to the amount of the sales price.
    Substitute replaced parts change into our property.
  3. The limitation period for liability claims shall be 12 Month as of the passage of risk in subsection V. above. The limitation period in Case of a delivery recourse pursuant to sec. 479 German Civial Code shall remain unaffected. Used parts are sold under exclusion of each warranties.
  4. If the subsequent delivery failed, the customer may at his option request the recession of the contract or the reduction of the sales price. 
  5. Requirements for lack do not exist in case of insignificant deviation from the agreed conditions, insignificant impairment of usefulness, if a damage shall have been caused by ordinary wear and tear, acts of omissions  (of a customer or any vicarious agent) such as wrongful use or in proper monitoring. This shall also apply to al damages to parts that the customer or any third party shall have altered or replaced without the written consent of us.

VII.
Retention of Title

  1. We shall retain full title of the goods that have being delivered until the customer has discharged all claims.
  2. In case of a breach of contract by the customer, particularly in case of default with payment, the supplier shall have the right, upon submitting a warning letter with a reasonable deadline, to take the delivery good back. The return of the good to the supplier shall not be deemed as the rescission from the contract. The customer is liable to insure at his expanse the good delivered against fire, water and theft damages at replacement value. 
  3. The customer shall be entitled to resell the good in the ordinary course of business. However, the customer hereby assigns to the supplier all claims up to the amount of the final invoice amount (including value added tax) agreed upon with the supplier, which claims the customer obtains from reselling against the further customer or third parties, regardless of whether the good subject to a reservation of title is sold after the processing  or not.  The customer shall  be entitled,  even after the assignment, to collect the debts. The right of the supplier to collect the debts himself shall remain unaffected. The supplier agrees not to collect the debts as long as the customer complies with his payment duties properly, as long as the customer is not in default with payments and as long as no application to adjudicate insolvency or composition proceedings are filed or a suspension of payment exists. In this case, however, the supplier may request that the customer informs the supplier of the debts assigned and the respective debtors, that the customer shall submit all information necessary to collect the debts, submits all necessary documents and he shall inform the debtor (third party) of the assignment.
  4. The processing and manufacturing of the good by the customer shall always be made in favor of the supplier. If the good is processed together with other goods not delivered by the supplier, the supplier shall obtain joint title with regard to the newly manufactured good proportionally to the objective value of the good as compared to the value at the time of the processing of the other goods processed. Otherwise, the same rules applicable to the delivery of a good sold subject to a reservation of title
    shall apply to the good being processed.
  5. If the good is inseparably mixed with other goods not owned by the supplier, the supplier shall obtain co-ownership of the new good proportionally to the objective value of the good as compared to the value of the mixed goods at the time of the mixing. If the mixing occurs in a way that the good of the customer is regarded as the main good, it shall be deemed agreed that the customer shall grant co-ownership proportionally to the supplier. The customer shall keep this sole or co- ownership in favour of the supplier.
  6. We agree to release securities obtained by him, upon request of the customer, in so far as the value of the securities, as compared to the claims not yet settled, exceeds such claims by more than 20 %; the selection of the securities to be released shall be made by the supplier.

VIII.
Liability for Defects

We are only liable in case of:

  • intentional negligent
  • grossly negligent conduct of the agents, of persons employed by us in the performance our obligations
  • culpable injury to life, body or health, malicious concealment of defects or guaranty of conditions of the goods
  • culpable violation of a substantial contractual duty. In this case liability for damages shall be limited to the foreseeable damage usually accruing in such cases. This shall also apply the mandatory liability pursuant to the Products Liability Act.

Unless anything to the contrary subsection IV 4. has been regulated above the liability shall be excluded. As far as our liability is excluded or limited the same provisions also apply regarding personal liability of our employees, our stuff, our representatives and agents.

IX.
Impossibility of Performance and adjustment of contract

  1. If the delivery is impossible the customer is entitled to claim damages if we are responsible with impossibility of performance. For each week of such delay such compensation shall amount to 0.5 % of the value of that particular part of the entired delivery which not can be used in time or in the manner provided in any respective agreement. The total of such compensation shall not exceed 5 % hereof how ever.
  2. Any agreed time of delivery shall be exceeded. If there shall be no unforeseen incidence in accordance with subjection IV 4. the customer is entitle to claim compensation for such delay. For each week of such delay such compensation shall amount to 0.5 % of the value of that particular part of the entired delivery which not can be used in time or in the manner provided in any respective agreement. The total of such compensation shall not exceed 5 % hereof how ever.
  3. In the event of any unforeseen incidents pursuant to subsection IV.4 that considerably change the financial significance or content of the delivery or with a major impact on our company, the agreement will have to be amended in good faith. If this is not financially feasible, we are entitled to withdraw from the agreement. Insofar as we make use of this right of withdrawal, we shall inform the ordering party straightaway on learning of the extent of the incident, even if initially the delivery time has been prolonged in agreement with the ordering party.

X.
Place of Performance and Jurisdiction

  1. The place of performance shall be Schweringen.
    (The place of performance shall be the suppliers work, unless anything to the contrary results from the order confirmation.)
  2. With  regard to all disputes resulting out of or in  relation to the contractual
    relationship, a law suit shall exclusively be initiated at the competent court at our
    principal place of business, provided the customer is a merchant, a
    legal person pursuant to public law or a public law trust. We are also entitled to file a law suit at the principal place of business of the customer.
  3. The substantive law of the Federal Republic of Germany shall apply.