General Terms and Conditions of Sale and Delivery

General Terms and Conditions of Sale and Delivery of DEUTA Mechanics GmbH
(as of September 15, 2009)

1. General – Scope

1.1 Deliveries are made exclusively in accordance with the following General Terms and Conditions of Sale and Delivery of the supplier. Any conflicting or deviating terms and conditions of the purchaser are not recognized unless expressly accepted in writing by the supplier. These General Terms and Conditions of Sale and Delivery also apply if the supplier, with knowledge of conflicting or deviating terms and conditions of the purchaser, carries out the delivery to the purchaser without reservation.

1.2 All agreements made between the supplier and the customer for the execution of a contract must be set down in writing in this contract. These General Terms and Conditions of Sale and Delivery apply only to merchants and to legal entities under public law or special funds under public law.

1.3 These General Terms and Conditions of Sale and Delivery also apply to all future transactions with the customer.

2. Offer – Contract Conclusion – Offer Documents

2.1 The supplier’s offers are non-binding. Every order only becomes binding after the supplier’s declaration of acceptance (confirmation letter) and exclusively according to its content.

2.2 The supplier retains ownership and copyright to all illustrations, drawings, calculations, and other documents that the supplier makes available to the customer or a third party designated by the customer; these may not be made available to third parties without the supplier’s consent. This applies in particular to written documents marked “confidential.” The customer requires the supplier’s express written consent before disclosing such documents to third parties.

3. Prices – Payment Terms

3.1 Unless otherwise stated in the order confirmation, the supplier’s prices are ex works Schwarzenbach in accordance with INCOTERMS 2000, excluding packaging, freight and insurance.

3.2 The statutory value added tax is not included in the supplier’s prices. It will be added at the applicable statutory rate on the date of invoicing and shown separately.

3.3 Default occurs if the buyer fails to pay within 14 days of delivery. Upon default, the buyer is obligated to pay the supplier interest at a rate of 8% above the base interest rate.

3.4 If checks and/or bills of exchange are accepted, this is done solely on account of payment. All costs incurred in connection with the realization of such claims, including interest and discount charges, shall be borne by the customer.

3.5 The customer is only entitled to set-off rights if his counterclaims have been legally established, are undisputed, or have been acknowledged by the supplier. Furthermore, he is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

4. Delivery conditions

4.1 The commencement of the delivery period specified by the supplier in the order confirmation is contingent upon the binding clarification of all technical issues.

4.2 Cases of force majeure – in particular operational disruptions, delays in the delivery of essential raw materials, supplies, and operating materials, strikes, and lockouts – suspend the contractual obligations of the parties for the duration of the disruption and to the extent of its impact. If the force majeure results in a final, permanent, and irreparable impediment to performance, the supplier is entitled to withdraw from the contract. Such a final, permanent, and irreparable impediment to performance is generally defined as the occurrence of force majeure for a period of six weeks.

4.3 The supplier’s compliance with its delivery obligations is contingent upon the customer’s timely and proper fulfillment of its obligations.

4.4 If the purchaser is in default of acceptance or culpably breaches other obligations to cooperate, the supplier is entitled to claim compensation for the resulting damage, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the delivery item also passes to the purchaser at the time the purchaser is in default of acceptance.

4.5 The supplier is entitled to make partial deliveries to a reasonable extent.

5. Transfer of Risk

5.1 Unless otherwise stated in the order confirmation, delivery is ex works of the supplier in accordance with INCOTERMS 2000.
5.2 At the customer’s request, the delivery will be insured for transport. The customer shall bear the costs incurred for this.

6. Retention of title

5.16.1 The goods are delivered subject to retention of title until full payment of all claims existing at the time of delivery and those arising in the future from the business relationship. This includes all ancillary claims such as exchange costs, financing costs, and interest.

6.2 The purchaser is obligated to handle the delivered item with care; in particular, the purchaser is obligated to insure it adequately against fire, water, and theft damage at its nominal value at their own expense. If maintenance and inspection work is required, the purchaser must carry this out promptly at their own expense.

6.3 The purchaser may neither pledge nor assign the delivered goods as security. In the event of attachments or other interventions by third parties, the purchaser must immediately notify the supplier in writing and provide the supplier with all information and documents necessary to protect its rights. The enforcement officer or any third party must be informed of the supplier’s ownership. The purchaser shall bear all costs incurred in lifting the attachment and recovering the delivered goods, insofar as these costs cannot be recovered from the third party.

6.4 The customer is entitled to resell the delivered product in the ordinary course of business; however, the customer hereby assigns to the supplier all claims in the amount of the final invoice total (including VAT) that arise from the resale against its customers or third parties, regardless of whether the delivered product is resold as is or after processing. The customer remains authorized to collect these claims even after the assignment. The supplier’s right to collect the claims directly remains unaffected. However, the supplier undertakes not to collect the claims as long as the customer fulfills its payment obligations from the proceeds received and is not in default of payment. The same applies if an application for the opening of insolvency proceedings has been filed or payments have been suspended. In this case, we may demand that the customer disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors of the assignment.

6.5 Any processing or transformation of the delivered goods by the customer is always carried out on behalf of the supplier. The customer’s conditional ownership of the delivered goods extends to the processed or transformed item. If the delivered goods are processed with other items not belonging to the supplier, the supplier acquires co-ownership of the new item in proportion to the value of the delivered goods relative to the other processed items at the time of processing. The same provisions apply to the item resulting from processing as to the delivered goods supplied under reservation of title. If the delivered product is inseparably mixed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the delivered product relative to the other mixed items at the time of mixing. If the mixing occurs in such a way that the customer’s item is to be regarded as the principal item, the supplier acquires proportionate co-ownership. The customer holds the resulting sole or co-ownership in trust for the supplier.

6.6 The purchaser also assigns to the supplier its claims against its customers as security for the supplier’s claims against the purchaser that arise against a third party from the connection of the delivered product with real property.

7. Warranty for Defects

7.1 Any warranty is conditional upon the purchaser having properly complied with its commercial obligations to inspect and report defects.
7.2 If a defect in the delivered item exists for which the supplier is responsible, the supplier is entitled, at its discretion, to remedy the defect or to deliver a new item. In the case of remedying the defect, the supplier is obligated to bear all expenses necessary for this purpose, in particular transport, travel, labor, and material costs, unless these costs are increased because the delivered item was moved to a location other than the place of performance.

7.3 If the rectification of the defect or the delivery of a new item fails, the buyer is entitled, at his discretion, to withdraw from the contract or to demand a corresponding reduction in the purchase price. The buyer is generally expected to be given at least two attempts to rectify the defect. Withdrawal from the contract is excluded in the case of minor breaches of duty.

7.4 The warranty does not cover damage caused by:

• Behavior of third parties,
• improper use/overuse or other fault on the part of the customer or a third party,
• Loss, accidents, lightning strikes, water, fire, and other circumstances beyond the supplier’s control,
• for example, modifications or repairs carried out improperly by the customer or third parties without the prior authorization of the supplier,
• faulty assembly or commissioning by the customer or third parties,
• natural wear and tear.

7.5 If the supplier is liable according to clause 8 of these terms and conditions, the purchaser’s warranty claims are subject to the statutory limitation periods. Warranty claims are also subject to the statutory limitation periods if the defect consists of a third party’s right in rem, on the basis of which the return of the goods can be demanded, or of any other right registered in the land register, or in the case of a building or a component that, according to its customary use, has been used for a building and has caused its defectiveness. Otherwise, warranty claims are subject to a limitation period of one year.

7.6 The warranty period begins upon delivery of the goods.

8. Liability

8.1 The supplier shall be liable for the full amount of damages in cases of its own intentional misconduct and gross negligence, as well as the intentional misconduct and gross negligence of its executive employees. The supplier shall also be liable for the full amount of damages for breach of warranties, for the assumption of a procurement risk, for culpable injury to life, body, or health, and within the scope of liability under the Product Liability Act.
8.2 The supplier shall be liable in principle for any culpable breach of essential contractual obligations and for gross negligence on the part of its vicarious agents. The supplier’s liability under this clause 8.2 is limited to compensation for typical, foreseeable damages.
8.3 Any further liability of the supplier is expressly excluded.

8.4 To the extent that the supplier’s liability is excluded or limited, this also applies to the personal liability of its employees, workers, staff, representatives and agents.

9. Place of jurisdiction – Place of performance – Partial invalidity

9.1 If the customer is a merchant, a legal entity under public law or a special fund under public law with its registered office in Germany, the place of jurisdiction shall be the supplier’s place of business; however, the supplier is also entitled to sue the customer at its place of business.

9.2 If the customer’s place of business is abroad, all disputes arising from the contract or its validity shall be decided before the ordinary courts, provided the value in dispute does not exceed €50,000. The place of jurisdiction is the supplier’s place of business; however, the supplier is also entitled to bring legal action against the customer at the customer’s place of business.

For disputes exceeding €50,000, all arbitrations will be finally settled according to the Arbitration Rules of the German Institution of Arbitration (DIS), to the exclusion of recourse to the ordinary courts. For disputes up to €250,000, a single arbitrator will decide the case; for disputes exceeding €250,000, a three-member arbitral tribunal will decide.

The decisive factor is the amount in dispute at the time the lawsuit is filed; a subsequent increase or decrease in the amount in dispute does not affect the jurisdiction of the court called upon.

The place of arbitration is the supplier’s registered office. The language of the arbitration is German, unless the contract is written in another language, in which case that language shall be the language of the arbitration.

9.3 The law of the Federal Republic of Germany shall apply exclusively, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

9.4 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance shall be the supplier’s place of business.

9.5 If individual provisions of these General Terms and Conditions of Sale and Delivery or a provision within the framework of other agreements are or become wholly or partially invalid, the validity of all other provisions or agreements shall not be affected.