Terms of Service

Version dated: 13th February 2002

I. Validity

1. These terms and conditions of delivery and payment apply to all our agreements, including future agreements and other industrial payments (concerning businesses and employers). The Buyer’s terms and conditions shall not apply insofar as they do not accord with these terms and conditions of delivery and payment. They are also not binding on us, even if we do not reject them expressly after having received them.

2. Variations or additions to these terms and conditions of delivery and payment, as well as a waiver of the requirement for the written form must be in writing and agreed by both parties.

II. Offer/Order

1. Our offers are not binding. Any catalogues, leaflets, drawings etc. which accompany our offer contain only approximate details and descriptions.

2. Our written confirmation of the order is definitive. We reserve the right to change the goods to be delivered, in the event of technical progress.

3. Unless expressly agreed in writing to the contrary, our installation services are not part of our delivery obligations. If we agree to provide installation services, in an individual case, then our installation terms and conditions will also apply, together with our appropriate hourly rates.

III. Prices

1. Our prices are stated in Euros, ex-works or warehouse plus statutory VAT, plus packaging, freight, insurance, custom taxes or any other fees. It is to be noted that the provision of possibly tariff-reducing documents, e.g. EUR1 and / or tariff preferences can not be guaranteed at the time the order is placed, and thus there is no entitlement to this documents. In any case, the provision of such documents constitutes a special service which is not included in the contract.

2. Any increases in the price of materials and any increases in employment costs which arise between the closure of the contract and delivery can be passed on to the Buyer. This condition does not apply to goods and services to be delivered or performed within 4 months of entry into the contract, unless they are in the course of a long-term agreement

IV. Payment

1. Unless otherwise agreed, payments are due 14 days after the date of invoice without any deduction and are to be made in cash to one of the bank accounts mentioned.

2. We are not obliged to accept bills of exchange. If we do so, then this is in place of payment and only accepted on payment of any discounting or collection charges by the Buyer.

3. Counterclaims which we dispute or which are not finally recognized do not entitle the customer to either withhold or reduce payment. This does not apply to rights to refuse payment from the same contractual relationship.

4. If the Buyer is in default of payments or if his credit-worthiness is significantly and adversely affected after closure of the contract, all outstanding invoices become immediately due and payable in cash, even if installments were agreed or if cheques or bills of exchange may have been accepted. In addition, we are entitled, in this case, to insist on payment on account or security and after a reasonable additional time limit to cancel or rescind existing orders or agreements.

V. Deliveries

1. We will endeavor to comply punctually with delivery dates given; any agreement for a binding delivery date or time must be in writing. It begins with the date of our confirmation of the order but at the earliest on the day when the fully clarified order – in particular all technical details including measurements etc. – is received by us and any agreed deposit has been received by us. If the Buyer requires any amendments to the contract after our confirmation of the order, then any agreed delivery period is extended appropriately, provided we agree to the amendment requested.

2. Delivery times are extended for the period of the difficulty plus a reasonable additional time in the case of force majeure, act of war, strike, lock-out, political upheavals, transport problems or administrative measures etc. as well as any event which is unforeseen and beyond our control, notwithstanding whether this is in our factory or at our subcontractors’ (for example works closure, fire, unforeseen difficulties obtaining materials etc.).

3. Part deliveries are permissible

4. The Buyer is not entitled to return or refuse our deliveries without our prior written consent, unless in accordance with our guarantee and subject to condition VII below. If we agree to a return of the goods which is outside our guarantee terms and conditions, then this will be done exclusively against a credit note and we are entitled when preparing the credit note to take into account the condition of the goods returned and to make a handling charge amounting to 10% of the value of the goods delivered.

VI. Risk and Transport`

1. Transport is always at the risk of the recipient or the Buyer, even if carriage free delivery has been agreed.

2. We are entitled, but not obliged, to insure the delivery against damage arising from breakage, transport or fire and to charge the Buyer for such insurance. The method of delivery, the route and the packaging will – unless otherwise instructed by the Buyer (at his expense) – be chosen at our discretion and in accordance with usual practice.

VII. Warranty/Damages

1. The Buyer warrants the accuracy and completeness of all matters, documents, measurements and other instructions concerning the work given to us to enable us to complete the order. Any errors on the part of the Buyer cannot be the basis of any deficiency of our performance.

2. In the event of any clearly visible defect in our delivery and/or commissioning, written notice must be given immediately, or at the latest within ten days of completion. In the event of any defects which are not clearly visible, written notice must be given within 10 days of discovery. Any goods which are the subject of such notice are to be retained in the condition in which they are at the time when the alleged defect is discovered and are to be made available for inspection by us or our agents

3. In the event of the defect being accepted by us, we will fulfil our obligations. Whether we elect to fulfil our obligations by removing the defect or by delivering a non-defective item remains our decision. If our obligations are not fulfilled within a period deemed appropriate, the customer may withdraw from the contract or reduce the price/payment appropriately. The guarantee period is 12 months from danger transition. If the goods are used day and night, this period is reduced to 6 months. The above regulations concerning the guarantee period are not valid, if the law for buildings, items for buildings, building defects and the sale of consumer goods (including recourse claims) prescribes a longer obligatory period.

4. Our warranty obligations are conditional on the delivered goods being maintained and used properly. We accept no liability for damage which arises for the following reasons: improper use; incorrect assembly or installation by the Buyer or third parties; normal wear and tear; improper or negligent operation; inappropriate operational materials or substitute materials. All our guarantee obligations cease if the Buyer or a third party makes any changes or attempts any repairs to the goods without prior written consent.

5. Claims for damages on the part of the customer are out of the question, no matter what the legal reason, especially where they concern neglect of debt obligations or unlawful action. This does not apply in the case of any willful act or in cases of gross negligence, for fatal or bodily injury or damage to health, for prosecution according to the product liability law, for a warranty which we have taken over, for damage as a result of a breach of fundamental contractual obligations, or in other cases of legally obligatory prosecution. Prosecution for the breach of fundamental contractual obligations is, however, limited to reimbursement of damage typically foreseeable in the contract, provided there is no charge of a willful act or gross negligence or prosecution is for fatal or bodily injury or damage to health.

VIII. Retention of Title

1. We retain the title to the delivered goods until full payment has been made of all claims against the Buyer arising out of the whole contractual relationship.

2. If work is carried out on the goods or if they are attached to or incorporated in other goods, we acquire joint ownership of the newly manufactured goods at a value which is the proportion of the value of our delivered goods to the newly manufactured goods. The relevant value of the goods delivered and the value of the new goods is the invoice price or alternatively the actual value and it is the time of the remanufacture which is relevant to establish the value of such remanufacture. The Buyer is our agent on remanufacture without acquiring any rights against us as a result of such remanufacture.

3. The Buyer must insure the goods under retention against theft, damage, destruction and accidental loss (in particular fire and flood) and must prove this insurance to us on demand. He must give us details as to the whereabouts of the goods under retention and allow us and our agents to enter the premises where the goods are stored.

4. The Buyer is entitled to work on the goods under retention in the normal course of business, or to sell them, provided he is not in default of payment to us. The Buyer hereby assigns to us the full extent of all claims which may arise in his favour as a result of such sales, by way of security. We hereby irrevocably empower the Buyer to collect such assigned claims for his own account in his own name. If required by us, the Buyer will give details of the assignment and hand over to us all the necessary information and documents.

5. If the amount of securities exceeds our claims by more than 20%, we are obliged to release the excess of securities we hold to the Buyer at his request, or at the request of his creditors.

6. The Buyer must immediately notify us if execution is levied against any goods under retention or in book debts which have been transferred to us by way of assignment. All costs and damages are borne by the Buyer.

IX. Place of performance and place of jurisdiction, concluding conditions

1. The place of performance for delivery is the place from which the goods are dispatched. The place of performance for payment – including bills of exchange – is our main office.

2. The place of jurisdiction for all disputes arising out of the contractual relationship is (for commercial parties) our main office. We are, however, entitled to take the Buyer to the court responsible for his office.

3. German law shall apply to all legal relations between the Buyer and ourselves. The application of international sales law, in particular the uniform UN purchase law (CISG), is excluded.

4. If one part of this contract or these terms and conditions of delivery and payment is invalid, then this shall not affect the validity of the remainder of this contract or these terms and conditions.

X. German language conditions prevail

These conditions are a translation of our German language conditions, which are available on request. In the event of any conflict between the English language version and the German language version or in the event of any misunderstanding in the English language version then the parties agree that the German language version shall prevail.