General Terms and Conditions (GTC)

Last updated: November 2011

1. Scope

The following general terms of sale and delivery apply exclusively to the business relationship between us and our customers. We do not recognize conflicting terms and conditions of the customer unless we have expressly agreed to their validity in writing.

2. Applicable Law

Exclusively German law shall apply.

3. Ownership and Copyright

We reserve all ownership and copyrights to all samples, quotations, drawings, technical descriptions created by us, and similar information provided by us, whether tangible or intangible (including in electronic form). Disclosure to third parties is prohibited. The aforementioned information may only be made accessible to third parties with our consent.

4. Prices

Prices are exclusive of packaging and other shipping and transport costs. Packaging will be charged at cost and will only be taken back where we are obliged to do so by mandatory statutory provisions. All prices quoted are net prices and are subject to the applicable value-added tax.

5. Price Changes

The stated prices are our current sales prices and are based on the material prices and wages valid at the time. If more than four months elapse between conclusion of the contract and delivery, without us being responsible for a delivery delay, the price may be reasonably increased taking into account any increases in material, wage and other incidental costs. If the price increases by more than 40%, the purchaser is entitled to withdraw from the contract.

6. Retention / Set-off

The purchaser is entitled to withhold payments and to set off counterclaims only to the extent that the purchaser’s counterclaims are undisputed or have been finally adjudicated. A right of retention may only be asserted by the purchaser if it is based on the same contractual relationship.

7. Delivery Time

The stated delivery time is only binding if we have expressly confirmed it as binding. This presupposes that all commercial and technical questions have been clarified and that the purchaser has fulfilled all obligations incumbent upon it, such as providing the necessary official certificates or approvals. If an advance payment has been agreed, timely payment is a prerequisite for confirming the binding delivery date. Without such confirmation, the specified dates are only guideline values and exceeding them does not constitute default.

If the failure to meet deadlines or dates is demonstrably due to mobilization, war, civil unrest, strike, lockout, non-delivery or late delivery by suppliers, or the occurrence of other unforeseeable obstacles beyond our control and sphere of influence—particularly where the work proves more extensive than initially assumed—then all deadlines or dates shall be extended appropriately. We will inform the purchaser of the beginning and end of such circumstances as soon as possible.

The purchaser may claim a contractual penalty only if such penalty has been agreed separately. Claims for damages suffered by the purchaser as a result of delayed delivery—especially those arising from culpable breach of contract, negligently committed tortious acts, and consequential damages—are generally excluded. This does not apply in cases of intent or gross negligence, in the event of warranties, or in the event of breaches of essential contractual obligations due to simple negligence for typically foreseeable damages, as well as in the event of injury to life, body, or health where liability is mandatory by law.

If delivery is delayed for reasons for which we are not responsible, we are entitled to store the goods at the purchaser’s expense and to claim reimbursement of the costs incurred. We are entitled to take out insurance against storage risks at the purchaser’s expense.

If it is the purchaser’s responsibility to provide the means of transport for the delivery and the purchaser fails to do so at the contractually agreed time, we shall be released from our delivery obligation by storing and insuring the goods at the purchaser’s expense and risk. A forwarder’s acceptance certificate shall serve as evidence of delivery in accordance with the contract.

8. Transfer of Risk

The risk passes to the purchaser once the goods have left our works or have been made available to the purchaser at our works. If dispatch is delayed for reasons for which we are not responsible, the risk shall pass to the purchaser upon notification that the goods are ready for dispatch. Insurance can be taken out at the purchaser’s expense upon separate agreement. Partial deliveries are permitted.

9. Retention of Title

The goods delivered by us shall remain our property until all our claims against the purchaser have been fulfilled (retained goods), even if the individual item has been paid for. Pledging or transferring ownership by way of security of the retained goods is not permitted.

In the event of permissible resale or rental of the retained goods in the ordinary course of business, the purchaser hereby assigns to us, as security until all claims have been settled, the future claims against its customer arising from such resale or rental, without the need for any further specific declarations. The assignment also extends to balance claims arising within current account relationships or upon termination of such relationships between the purchaser and its customers.

If the retained goods are resold or rented together with other items without an individual price having been agreed for the retained goods, the purchaser assigns to us, with priority over the remaining claim, that portion of the total price claim or total rent which corresponds to the value of the retained goods invoiced by us. Until revoked, the purchaser is authorized to collect the assigned claims from the resale or rental; however, the purchaser is not authorized to dispose of them in any other way, for example by assignment.

At our request, the purchaser shall notify the customer of the assignment and provide us with the documents required to assert our rights against the customer, such as invoices, and provide the necessary information. All costs of collection and any legal interventions shall be borne by the purchaser.

If the purchaser receives bills of exchange for the collection of the assigned claims from the resale by virtue of the authorization granted to it, title in these instruments, together with the right evidenced thereby, shall pass to us as security. Delivery of the bills of exchange shall be replaced by the agreement that the purchaser shall hold them in safekeeping for us and shall then promptly deliver them to us duly endorsed.

If the value of the assigned claims is received by the purchaser or a bank of the purchaser by cheque, the purchaser shall notify us immediately of the receipt and remit the funds. Title to the cheques, together with the right evidenced thereby, shall pass to us as soon as the purchaser receives them. Delivery shall be replaced by the agreement that the purchaser shall hold them in safekeeping for us and then promptly deliver them to us duly endorsed.

If the purchaser processes the retained goods, transforms them, or combines them with other items, such processing, transformation, or combination shall be carried out for us. We shall acquire immediate ownership of the items produced by such processing, transformation, or combination. Should this not be legally possible, we agree with the purchaser that we shall acquire ownership of the new item at each stage of processing, transformation, or combination. The purchaser shall store the new item for us with the care of a prudent merchant. The item created by processing, transformation, or combination shall be deemed retained goods.

In the event of processing, transformation, or combination with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the processed, transformed, or combined retained goods to the value of the new item. In the event of the sale or rental of the new item, the purchaser hereby assigns to us its claim from the sale or rental against its customer, together with all ancillary rights, as security, without the need for any further separate declarations. However, the assignment shall only apply up to the amount corresponding to the value of the processed, transformed, or combined retained goods invoiced by us. The portion of the claim assigned to us shall have priority over the remaining claim.

If the purchaser defaults wholly or partially on its payment obligations or on the honoring of due bills of exchange or cheques, if there is over-indebtedness or suspension of payments, or if insolvency proceedings are filed for, we shall be entitled to take immediate possession of all goods still subject to retention of title; we may likewise immediately assert further rights arising from the retention of title. The same applies in the event of any other material deterioration in the purchaser’s financial circumstances.

The purchaser shall grant us or our agents access to all of its business premises during business hours. The demand for surrender or taking possession does not constitute withdrawal from the contract. We are entitled to realize the retained goods with the care of a prudent merchant and to satisfy our outstanding claims from the proceeds.

If the value of the security exceeds our claims against the purchaser from the ongoing business relationship by more than 20% in total, we shall, at the purchaser’s request, release securities at our discretion.

10. Warranty

If the delivery item is defective, the purchaser’s claims are, at our discretion, limited to rectification of the defect or delivery of a defect-free item (subsequent performance). The limitation period for claims for defects is one year, calculated from the date of transfer of risk. This presupposes that the delivery item has demonstrably become unusable or its usability has been significantly impaired due to a circumstance existing prior to the transfer of risk, in particular due to faulty design, inferior material, or poor workmanship. The discovery of such defects must be reported to us immediately in writing.

If the purchase is a commercial transaction for both parties, the purchaser shall inspect the goods immediately upon receipt, insofar as this is feasible in the ordinary course of business, and notify us immediately if a defect is found. If the purchaser fails to give such notice, the goods shall be deemed approved, unless the defect was not recognizable during the inspection. Otherwise, §§ 377 et seq. HGB (German Commercial Code) shall apply.

For the purpose of remedying defects, the purchaser shall grant us the time and opportunity for rework that we reasonably deem necessary. If this is refused, we shall be released from the obligation to remedy defects.

Claims for defects do not cover normal wear and tear, nor damage arising after the transfer of risk due to incorrect or improper handling, excessive stress, unsuitable operating resources, or due to chemical, electrochemical, or electrical influences not assumed under the contract. Claims for defects are excluded for any improper modifications, repairs, or maintenance carried out by the purchaser or third parties.

Further claims by the purchaser, in particular for consequential damages, are generally excluded. In particular, we do not compensate consequential damages such as production and usage downtime or loss of profit. This does not apply in cases of intent, gross negligence, or breaches of essential contractual obligations by the supplier, as well as in the event of injury to life, body, or health. The purchaser’s right to withdraw from the contract remains unaffected.

11. Withdrawal

We are entitled to withdraw from the contract if performance of the contract becomes impossible for reasons for which we are not responsible. We are also entitled to withdraw from the contract if unforeseeable events at the time of contract conclusion later fundamentally change the contractual circumstances to such an extent that adherence to the contract can no longer reasonably be expected of us. In the aforementioned cases, we may demand compensation from the purchaser for all necessary expenditures made for the order, unless the parts manufactured for the order can be used elsewhere on an equivalent basis within a reasonable period.

12. Third-Party Intellectual Property Rights

We shall be liable to the purchaser for the infringement of third-party industrial property rights under the following provisions. Fulfillment of this provision presupposes that the purchaser immediately informs us of claims based on property rights asserted by third parties against the purchaser and acts in coordination with us when dealing with such claims and in the pursuit of its rights. If any of these conditions are not met, we are released from our obligations.

If an infringement of third-party rights is found and the purchaser is therefore legally prohibited from using a delivered item in whole or in part, we shall, at our own expense and at our discretion, either

1. procure for the purchaser the right to use the delivery item, or
2. render the delivery item free of property rights, or
3. replace the delivery item with another item of equivalent performance that does not infringe property rights, or
4. take back the delivery item against reimbursement of the purchase price.

If the purchaser makes changes to the delivery item by installing additional equipment or by connecting the delivery item with other devices or equipment, or interferes with the program control or the software, and if third-party rights are thereby infringed, our liability shall cease. Likewise, we shall not be liable for the infringement of third-party rights with respect to a delivery item that has been manufactured according to drawings, developments, or other inputs from the purchaser. In such cases, the purchaser shall indemnify us against third-party claims.

No further or other claims shall accrue to the purchaser due to the infringement of third-party rights. In particular, we do not compensate consequential damages such as production and usage downtime or loss of profit. This does not apply in cases of intent or gross negligence, or in the event of breaches of essential contractual obligations due to simple negligence for typically foreseeable damages where liability is mandatory by law. The purchaser’s right to withdraw from the contract remains unaffected.

The purchaser does not acquire any rights to use any of our intellectual property rights that concern the interaction of the delivery item with other items. Where software is included in the delivery, the purchaser is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the designated delivery item. Use of the software on more than one system is prohibited.

The purchaser may use the software only within the statutory scope (§ 69a et seq. UrhG). The purchaser undertakes not to remove or alter manufacturer’s notices, in particular copyright notices, without our prior express consent. All other rights to the software and documentation, including copies, remain with us or the software supplier. The granting of sub-licenses is not permitted. Any transfer, in particular resale of the software delivered by us, requires our express consent.

13. Liability

Unless otherwise provided above, we and our agents and vicarious agents shall be liable for the purchaser’s claims for damages arising from breach of contract (§ 280 BGB), from breach of duties during contractual negotiations, and from tort as follows:

1. Liability for personal injury is governed by statutory provisions.
2. Liability for property damage is limited to € 250,000.00 per damaging event and € 500,000.00 in total.
3. Liability for purely financial loss is excluded.

The limitation of liability under b) and the exclusion of liability under c) do not apply insofar as liability is mandatory for damage to privately used items under the Product Liability Act or in cases of intent or gross negligence, or for breaches of essential contractual obligations for typically foreseeable damages.

14. Final Provisions

All agreements, whether made at the time of or after the conclusion of the contract, must be in writing. This also applies to amendments to the written-form clause. Oral statements are only binding if confirmed by us in writing.

Place of performance for all contractual and statutory claims is our place of business. Jurisdiction of the Local Court (Amtsgericht) and Regional Court (Landgericht) of Siegen is agreed.

The contract shall remain binding in its remaining parts even if any of its provisions is invalid. Should any provision be wholly or partly invalid, the contracting parties shall immediately endeavor to achieve the economic effect intended by the invalid provision in another legally permissible way.