Order, delivery and payment terms – Status: 01.01.2007

§ 1

General – Area of application

  1. Our sales conditions apply exclusively; any contrary or deviating sales conditions of the buyer are not recognised by us unless we have explicitly agreed to their validity in writing. Our sales conditions are also applicable even if we deliver to the buyer without reserve although we are aware of sales conditions of the buyer contrary or deviating from those of our company.

  2. All agreements reached between our company and the buyer for the purpose of executing this agreement are to be noted in the agreement in writing.

  3. Our sales conditions only apply to companies in terms of Section 310 Para. 1 BGB (Bürgerliches Gesetzbuch / Civil Code).

§ 2

Offer - Offer documentation

  1. If the order is to be qualified as an offer in terms of Section 145 BGB, we are entitled to accept such order within a period of 2 weeks.

  2. We retain the copyright and ownership rights for illustrations, drawings, calculations and other documents; they may not be made available to a third party. This applies in particular to such written documents that have been identified as "confidential"; the buyer must obtain our explicit written approval prior to passing on such information to a third party.

§ 3

Prices - Payment terms

  1. The list prices stated on our gross price list in the relevant valid version. When a new gross price list is issued, all previous lists lose their validity.

  2. All articles are subject to a price surcharge. The price surcharge follows the current purchase of materials price and is therefore variable. The relevant applicable price surcharge per article can be obtained on request.

  3. A minimum order value applies to all deliveries and services and must be adhered to. The amount of the minimum order value as well as the amount of an additionally arising minimum quantity surcharge can be seen from the latest delivery conditions. We reserve the right not to deliver orders where the net goods value is lower than the minimum order value.

  4. Unless the order confirmation states otherwise, our prices are "ex factory". Freight, packaging and other possibly arising costs are invoiced separately.

  5. The legal VAT is not included in our prices; it is listed separately in the invoice according to the legally applicable amount valid on invoice date.

  6. Date of delivery is usually also the date of the invoice. Invoicing on collection / delivery conditions takes place at the latest the first working day of the month after the notification for collection, or else at the end of the month on the last working day of the same month. Payment terms commence with the invoice date. A belated collection does not have a postponing effect on the payment terms.

  7. Any deduction of discount requires a special written agreement.

  8. As far as the order confirmation does not stipulate otherwise, the purchase price is due within 30 days from date of invoice – net (without deduction). The legal provisions concerning the consequences of payment arrears apply.

  9. The buyer only has a right to offset if his counter-claims have been legally determined, are undisputed or recognised by us. Apart from that he is insofar entitled to the right of retention if his counter-claim is based on the same contractual relationship.

§ 4

Delivery time

  1. The beginning of the delivery time quoted by us presupposes the clarification of all technical questions.

  2. All delivery dates stated by us are approximate. Any deviations to this must be confirmed by us in writing for each individual case.

  3. The adherence to our delivery obligations further presupposes the timely and proper fulfilment of the buyer's obligations. The objection of the non-fulfilled agreement remains reserved.

  4. If the buyer is in default of acceptance, or if he culpably violates other collaboration obligations, we are entitled to demand the replacement of the damage occurred in this respect including possible additional expenses. Further claims remain reserved.

  5. As far as the preconditions in terms of Para. (4) exist, the danger of an accidental destruction or an accidental worsening of the purchase item is transferred to the buyer at the point in time when the buyer is in default of acceptance or in debtors's delay.

  6. We are liable according to the legal provisions as long as the underlying sales agreement is a fixed business in terms of § 286 Section 2 No. 4 BGB or of § 376 HGB (Handelsgesetzbuch / Commercial Code). We are also liable in terms of the legal provisions if, as a result of a delivery delay for which we are responsible, the buyer is entitled to assert that his interest in the further fulfilment of the contract is in discontinuance.

  7. We are further liable in terms of the legal provisions as far as the delivery delay is due to a wilful or gross negligent contractual violation for which we are responsible; a fault of our representatives or sub-contractors is attributable to us. As far as the delivery delay is not the result of a wilful contractual violation for which are responsible, our liability for damage claims is restricted to the foreseeable, typically occurring damage.

  8. We are also liable in terms of the legal provisions, as far as the delivery delay for which we are responsible is based on a culpable violation of a significant contractual obligation; in this case however the claim for damages is restricted to the foreseeable, typically occurring damage.

  9. For the rest, we are liable in the instance of a delivery delay for every completed week that we are in arrears within the framework of a flat rate delay compensation in the amount of 3% of the delivery value, maximum however not more than 15% of the delivery value.

  10. Further legal claims and rights of the buyer remain reserved.

§ 5

Delivery volume - Quality standard

  1. Only the text contained in the order confirmation of the supplier is decisive for the delivery volume. The supplier delivers in the standard commercial quality. (Minor deviations with regard to colour and size, etc. compared to the samples rendered are to be tolerated). All articles are in principle manufactured with the tolerances in terms of our manufacturing technique. On principle semi-finished products used are of steel quality S235JRG2 according to DIN-EN 10025 or equivalent. Any deviation to this must be explicitly pointed out in the order and the order confirmation. unless otherwise specified, must be manufactured in unstained quality. The supplier is not liable for faults that result out of documents (drawings, samples) not submitted by the buyer.

  2. We are entitled to carry out part deliveries as well as minor over- respectively under deliveries of single items and/or weight for production reasons; every part delivery is considered an independent transaction.

§ 6

Transfer of risk

  1. Unless the order confirmation states otherwise, our prices are "ex factory".

§ 7

Liability for defects

  1. Claims for defects on the part of the buyer presuppose that the buyer has duly fulfilled his obligations in terms of examination and notification of defects in terms of Section 377 HGB.

  2. As far as a defect on the purchase object is present, the buyer - at his choice - is entitled to a subsequent performance in the way of a removal of the defects or a delivery of a new faultless item. . In the instance of a removal of a defect, we are obliged to carry all the costs incurred to remove such defects, in particular transport, handling costs, work and material costs as far as these are not increased by the fact that the purchase item was relocated to another place other then the place of performance.

  3. If the subsequent performance is unsuccessfully, the buyer is entitled - at his choice - to withdraw from the agreement or to ask for a reduction.

  4. In terms of the legal provisions we are liable as far as the buyer has asserted claims for damages that are based on wilful intent or gross negligence including the wilful intent or gross negligence of our representatives or sub-contractors. As far as we are not blamed for a deliberate violation to the agreement, the liability for damages is restricted to the foreseeable, typically occurring damage.

  5. We are liable in terms of the legal provisions as far as we culpably violate a significant contractual obligation; in this case however the liability for damages is restricted to the foreseeable, typically occurring damage.

  6. As far as the buyer is entitled to compensation of the damage instead of the performance, our liability is also restricted in terms of Para (3) to the foreseeable, typically occurring damage.

  7. The liability due to culpable violation of life, body and health remains unaffected; this applies particularly also the mandatory liability in terms of the Product Liability Act.

  8. As far as nothing has been regulated to the contrary above, liability is excluded.

  9. The statutory period of limitation for claims for defects is 12 months, calculated from the date of the transfer of risk.

  10. The statutory period of limitation in the case of a delivery recourse in terms of Sections 478, 479 BGB remains unaffected; it is five years, calculated as from the date of the faulty item.

§ 8

Overall liability

  1. A further liability for damage claims as envisaged in Section 7 is excluded - without consideration to the legal nature of the claim being asserted. This applies in particular for damage claims as a result of culpability at the signing of the contract, other duty violations or due to tort actions regarding claims for compensation of property damages in terms of Section 823 BGB.

  2. The restrictions in terms of Para (1) also apply as far as the buyer instead of a claim for a replacement of the damage, instead of the performance, requests a replacement of unproductive expenses.

  3. As far as the liability for damages against us is excluded or restricted, this also applies with regard to the personal liability compensation of our staff, employees, co-workers, representatives and sub-contractors.

§ 9

Reservation of title

  1. We reserve the right to the title on the purchase item up until the receipt of all payments out of the delivery agreement. In the case where the buyer is in breach of contract, in particular in default of payment, we are entitled to take back the purchase item. Taking back the purchase item by us constitutes a withdrawal from the agreement. Following the taking back of the purchase item we are entitled to its realisation, the realisation value is credited to the buyer's liabilities - less reasonable realisation costs.

  2. 2) The buyer undertakes to treat the purchase item carefully; in particular he undertakes to sufficiently insure it at his own expense against damages by fire, water and theft at the new value. As far as maintenance and inspection work is necessary, the buyer must carry these out at his expense in good time.

  3. In the event of seizures or other interventions by a third party, the buyer must immediately notify us in writing so that we can take legal action according to Section 771 ZPO (Zivilprozessordnung / Code of Civil Procedure). As far as the third party is unable to refund the court and out of court costs of an action in terms of Section 771 ZPO, the buyer is liable for the loss incurred to us.

  4. The buyer is also entitled to resell the purchase item in a property business transaction; the buyer already now however cedes all accounts receivables against his customers or third parties in the amount of the invoice end amount (including VAT) to us that accrue to him out of the resale, irrespective of whether the purchased item was resold prior to or after processing. The buyer also remains entitled to collect this claim after such cession. Our authorisation to collect this claim ourselves remains unaffected hereof. We do however undertake not to collect the claim as long as the buyer meets his payment obligations out of the earnings received, is not in default of payment and in particular no initiation of a compromise or insolvency proceeding has been applied for or a suspension of payment exists. If this is the case, we can demand that the buyer provides us with the information of the ceded accounts receivables and their debtors, and all the necessary information required for collection, hands us the relevant documentation and informs the creditor (third party) of the cession.

  5. The processing or remodelling of the purchase item by the buyer is always carried out for us. If the purchase item is processed with other items that do not belong to us, we purchase the co-ownership of the new item in relationship to the value of the purchase item (invoice end amount, including VAT) along with the other processed items at the time of the processing. For the item that developed through processing, the same applies as for those purchased items delivered under reservation.

  6. If the purchase item is processed with other items that do not belong to us, we purchase the co-ownership of the new item in relationship to the value of the purchase item (invoice end amount, including VAT) along with the other processed items at the time of the processing. If the mixing takes place in such a way that the item of the buyer is to be considered the main item, it is deemed as agreed that the buyer transfers co-ownership to us proportionately. The buyer stores the developed sole ownership or co-ownership for us.

  7. The buyer also assigns us the claims to secure our claims against him that arise out of the connection with the purchase item with a property against a third party.

  8. We undertake to release the securities to which we are entitled at the request of the buyer in as far as the realised value of our securities exceed the claims to be secured by more than 10%; the choice of securities to be released lies with us.

§ 10

Place of performance - Place of jurisdiction - Applicable law

  1. As far as the buyer is a merchant, our place of business is the place of jurisdiction; we are however also entitled to take action against the buyer at his place of residence.

  2. The laws of the Federal Republic of Germany apply; the validity of the UN Purchase right is excluded.

  3. As far as the order confirmation does not state anything to the contrary, our place of business is the place of performance.

§ 11

Data storage

  1. The buyer/orderer declares that he agrees that all information required for the conclusion of the agreement necessary is stored and processed electronically at Werner Kimminer GmbH.

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