General Terms and Conditions

Last updated: 07/2008

I. General terms and conditions

1. The following terms and conditions shall only apply to companies within the meaning of §§ 14, 310 Section 1 BGB (German Civil Code).

2. The following terms and conditions shall apply for sales, delivery and other services. They also apply to all future transactions and services, even they are not expressly agreed again in individual cases. Purchasing conditions of the customer (buyer or ordering person) shall not become part oft he contract, even if they have not been expressly contradicted.

II. Offer and Conclusion of Contract

1. Our offerings are subject to change and non-binding. Declarations of acceptance by customers in response to offers shall be deemed orders within the meaning of clause 2.

2. An order of the customer, which contains the offer for the conclusion of a sales contract, we can accept within four weeks by sending an order confirmation or sending the orders devices or parts.

3. Orders accepted or confirmed by us can only be cancelled with our consent. Cancallation and returns are excluded if they relate to devices or parts configurated by us according to the customer’s wishes or requirements.

4. The information (dimensions, weight, etc.) given in offers and related documents (illustrations, drawings, etc.) are only approximate unless they are expressly designated as binding. We reserve ownership, copyright and other proprietary rights to offers, cost estimates, calculations, drawings and other documents. Before passing on documents to third parties, the customer requires our express written consent, irrespective of if we have marked the documents as confidential or not. The commercial use of product sheets, illustrations or the like for advertising purposes without prior written consent is prohibited.

5. In the contract, all agreements made between us and the customer for regulation and execution of the purchase contract are laid down in written form. In all future contracts, all agreements must be made in written form.
6. Our sales employees are not authorized to make oral collateral agreements or to give assurances that go beyond the content in the written contract.

III. Scope of delivery

1. Our written order confirmation shall be decisive for the scope of delivery. In the case of an offer with a time limit and a timely order, the offer shall be decisive if no order confirmation is issued.

2. Partial deliveries are permissible insofar as they are reasonable for the customer.

IV. Delivery time

1. Information regarding delivery times and/or dates are always approximate and non-binding. In particular, they are subject to correct and timely delivery by our suppliers. If we have expressly promised a binding delivery time in individual cases, it shall only commence after all details of the delivery to be carried out have been clarified, in particular all technical questions, and only if the customer’s contractual obligations have been fulfilled in a timely and complete manner. We reserve the right to plead non-performance of the contract.

2. The delivery time shall be extended appropriately in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs, official orders and the occurrence of unforeseen obstacles which are beyond our control, insofar as such obstacles have a considerable influence on the completion or delivery of the delivery item. This also applies if the circumstances occur at upstream suppliers. We are also not responsible for the aforementioned circumstances if they occur during an already existing delay. In important cases, we will inform the customer as soon as possible of the beginning and end of such obstacles.

3. The delivery time shall be deemed observed if the delivery item has left the works by the time it expires.

4. If we are in default, the customer may, if he can prove that he has suffered damage as a result, demand compensation for each completed week of delay of 0.5% each but in particular a maximum of 5% of the agreed purchase price for that part of the deliveries which could not be put to the intended use due to the delay.

5. Claims for damages by the customer due to delay in delivery as well as claims for damages in lieu of performance exceeding the limits specified in Clause 4 are excluded in all cases of delay delivery, even after expiry of any deadline set to us for delivery. This does not apply in case of intent, gross negligence or injury to life, body or health. The customer may only withdraw from the contract within the framework of statutory provisions if we are responsible for the delay in delivery. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

6. If the customer defaults in acceptance or violates other duties to cooperate, we shall be entitled to claim compensation for the damage incurred to us in this respect, including any additional expenses. Further rights and claims remain unaffected.

7. If the requirements of Clause 6 are met, the risk of accidental loss or accidental deterioration of the object of purchase shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s default.

8. For orders placed on call, the delivery period shall be the period agreed between the customer and us. If the call-off does not take place within a reasonable period of grace set by us, we shall be free to carry out the delivery and calculation or to withdraw from the purchase contract and assert a claim for damages.

V. Prices, Terms of payment

1. Unless otherwise stated in the offer or the order confirmation, our prices valid on the day of delivery shall apply “ex works”, excluding packaging and dispatch. Packaging and shipping costs will be invoiced separately. Prices are subject to value-added tax and the statutory rate applicable at the time of delivery.

2. If we take over installation of the purchased equipment in individual cases and nothing to the contrary has been agreed, the customer shall bear, in addition to the purchase price, the costs associated with installation, in particular wage and travel costs at our usual rates.

3. The deduction of cash discount requires a special written agreement.

4. Unless otherwise stated in the order confirmation, payment is due net (without deduction) within 30 calendar days from the date of invoice. If the customer is in default of payment, we are entitled to demand default interests in the amount of 8 percentage points above the base interest rate in accordance with § 247 BGB . If we are in position to prove a higher damage caused by default, we are entitled to assert this.

5. The customer is only entitled to offsetting rights if his counterclaims are legally established, undisputed or acknowledged by us. Furthermore, he is only entitled to exercise a right of retention to the extent that it is based on the same contractual relationship.

6. The return of delivered goods may only take place after presentation of our written consent. For all returns we deduct 25% of the remuneration or at least 50 Euro processing costs from the credit note. Necessary reconditioning and repacking cost will be charged separately. The risk of return transport and the cost of return transport shall be borne by the customer.

VI. Transfer of risk an acceptance

1. Unless otherwise stated in the order confirmation, delivery “ex work” is agreed. Loading and dispatch are carried out uninsured at the customer’s risk. Transport packaging and all other packaging in accordance with the packaging ordinance will not be taken back, with the exception of pallets. The customer is obliged to dispose of the packaging at his own expense.

2. If the customer so wishes, we will insure the shipment against transport damage and other insurable risks. The costs incurred with this respect shall be borne by the customer.

3. The risk shall pass to the customer upon dispatch of delivery parts, even if partial deliveries are made or if we have assumed other services, e.g. dispatch or delivery and installation. We reserve the right to choose the mode of dispatch.

4. If handover or dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day of notification of readiness for dispatch. In this case notification of readiness for dispatch shall be deemed equivalent to dispatch. We shall store the goods at the customer’s expense for a storage fee of o.5% of the purchase price for each month or part thereof, but no more than a total of 5%. Both parties to the contract are free to prove higher or lower storage costs.

5. Delivered parts, even if they show insignificant defects, are to be accepted by the customer without prejudice to the rights under Section IX.

VII. Reservation of ownership

1. We reserve the ownership to the delivered goods until all claims to which we are currently or in the future entitled against the customer from the business relationship have been settled, irrespective of the legal basis and including all balance claims from current accounts. In the event of breach of contract on the part of the customer, in particular default or payment, we shall be entitled to take back the goods. By taking back the goods, we do not constitute a withdrawal from the contract, unless we have expressly declared this in written form. After taking back the goods, we are authorized to exploitation. The liquidation proceeds less reasonable liquidation costs shall be set off against the customer’s liabilities.

2. The customer is obliged to treat the delivered goods with care. In particular he is obliged to insure them at his own expense against fire, water damage, theft and other risks resulting from use at replacement value. If maintenance and inspection work is required, the customer must carry it out in time at his own expense.

3. In the event of seizures or other interventions by third parties, the customer must inform us immediately in written form so that we can protect our rights and, if necessary, bring an action against the third party. The customer is obliged to inform the third party immediately of our ownership. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs of an action, the customer shall be liable for the costs incurred by us.

4. The customer is entitled to resell the goods subject to retention of title in the ordinary course of businesses. However, he hereby assigns to us all claims against his customers or third parties resulting from the resale or for other legal reasons (insurance, tort, etc.) with all associated rights in the amount of the final amount (including VAT) of our invoice, irrespective of whether the goods have been resold without or after agreement. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations in due time and in full, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended. The customer undertakes to resell the goods only subject to retention of title. If the right to collect becomes effective, we can demand that the customer informs us of the assigned claim and its debtor, provides all information necessary for collection, hands over the associated documents and informs the debtor (third party) of the assignment.

5. The processing or transformation of the goods subject to retention of title by the customer is always carried out for us. If the goods subject to retention of title are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title (financial invoice amount, including VAT) to that of the other processed items at the time of processing. The same applies to the object created by processing as to the goods delivered under the reservation of title.

6. If the goods subject to retention are combined or inseparably mixed with other movable objects not belonging to us, we shall acquire co-ownership of the new object in ratio of the value of the goods subject to retention of title (financial invoice amount, including VAT) to that the other combined or mixed objects at the time of combination or mixing. If the combination or mixing takes place in such way that the customer’s item is to be regarded as the main item, it is agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall store the sole ownership or co-ownership thus created for us free of charge.

7. In order to secure our claims against him, the customer shall also assign the claims which arise against a third party as a result of the mixing or combination, including those with a piece of real estate.

8. We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is incumbent by us.

VIII. Notices of defects

1. Warranty rights of the customer presuppose that he has properly fulfilled his obligations to examine and give notice of defects in accordance with § 377 HGB (German Commercial Code). The customer is obliged to inspect the delivered devices and parts immediately upon receipt.

2. In case of obvious defects, notifications of defects must be addressed to us in written form within one week after receipt and and will only be taken into account in the extent that the goods are still in the condition of delivery. In the event of justified complaints acknowledged by us, we reserve the right to replace the defective goods.

3. Defects that cannot be detected upon careful inspection and any consequential damage that may occur must be reported to us immediately, but at the latest within 2 weeks after they were or could have been discovered. The customer must ensure that all necessary measures for damage reduction are taken without delay. We must be given the opportunity to inspect the defective parts and the damage on site in unaltered condition.

4. The devices or parts complained of as defective shall be returned to us for inspection and, if necessary, subsequent performance at the customer’s expense, unless we agree to an inspection at the customer’s premises or another location specified by the customer.

IX. Warranty, Liability for defects in the delivery

1. We grant a warranty period of one year from the transfer of risk within the meaning of section IV for new device units sold. We will regulate duly notified defects within this period in accordance with the following regulations.

2. If installation, operating or maintenance instructions are not followed by the customer, changes are made to delivered devices or parts, parts are exchanged or consumables are used which do not correspond to the original specifications, claims for defects in the product shall lapse if the customer does not refute a corresponding substantiated claim that only one of these circumstances has caused the defect.

3. Devices and parts which prove to be defective, in particular due to defects in design, materials used, components used or workmanship, will be repaired or replaced at our discretion. Replaced parts are to be returned by the customer. If the repair fails (§ 440 S. 2 BGB) or if the delivered item is also defective, the customer can reduce the contractual remuneration appropriately or withdraw from the contract. In the event of insignificant defects, withdrawal from the contract is excluded.

4. After consultation with us, the customer must give us the necessary time and opportunity to carry out all subsequent improvements and replacement deliveries which we deem necessary, otherwise we shall be released from liability for defects. Only in urgent cases of endangering operational safety and to prevent disproportionately large damage, whereby we must be notified immediately and our consent must be obtained as far as possible, or if we are in default with the rectification of the defect, shall the customer have the right to rectify the defect himself or have it rectified by competent third parties and to demand reimbursement of the necessary costs from us.

5. The costs arising from the customer’s complaint for the purpose of inspection and subsequent performance shall be borne by us if the complaint proves to be justified, otherwise by the customer. If rectification work is carried out at the customer or third parties, we shall only bear the costs of replaced parts in the event of justified complaints, while working hours and travel costs are to be reimbursed by the customer.

6. Further claims of the customer, in particular claims for compensation for damages which have not occurred on the delivery item itself, are excluded to the extent permitted by law.

7. Only our direct customers are entitled to rights and claims due to defects and are not transferable.

8. Legal rights and claims of the customer due to defects become statute-barred one year after the transfer of risk in accordance with Section VI.

X. Liability for breach of other obligations

We are liable for damages which we, a legal representative or vicarious agent have caused intentionally or grossly negligently due to breaches of duty. We are also liable for damages due to malicious conduct or from injury to life, body or health, which are based on a breach of duty on our part, a legal representative or vicarious agent, even in the case of simple negligence. The same applies to damages due to the violation of essential contractual obligations; in this case the liability is limited to the contract-typical foreseeable damage. Any other liability is excluded.

XI. Right of the customer to withdraw from the contract

1. The customer may withdraw from the contract if the entire performance becomes finally impossible for us before the transfer of risk. The customer may also withdraw from the contract if, in the case of an order for similar goods, the execution of part of the delivery becomes impossible in terms of quantity and he has a justified interest in refusing a partial delivery; if this is not the case, the customer may reduce the consideration accordingly.

2. If the impossibility occurs during the delay in acceptance or through the fault of the customer, the customer remains obliged to pay in return.

3. If we fail to meet an agreed delivery time, the customer shall grant us a reasonable grace period for performance. If the grace period is not met, the customer is entitled to withdraw from the contract.

XII. Right of the supplier to withdraw from the contract

1. In the event of unforeseen events within the meaning of Section IV. if they significantly change the economic significance or the content of the service or have a significant effect on our business, and in the event of subsequent impossibility of performance, the contract shall be adjusted accordingly. If this is not economically justifiable, we shall be entitled to withdraw from the contract in whole or in part.

2. The customer has no claims for damages due to such a withdrawal. If we as supplier wish to make use of the right of withdrawal, we must inform the customer of this immediately after realising the scope of the event, even if an extension of the delivery period had initially been agreed with the customer.

XIII. Other conditions

1. These terms and conditions and the entire legal relationship between us and the customer shall be governed by the law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

2. Place of jurisdiction for all disputes arising from the contractual relationship is, the registered office of our company, currently Gießen. We are also entitled to sue at the headquarters of the customer.

3. Unless otherwise stated in the order confirmation, our place of business is the place of performance.

4. Should a provision in these conditions or any other contractual provision made between the parties be or become invalid, the validity of all other provisions or agreements shall remain unaffected.