Terms and Conditions

2. Conclusion of the Contract

(1) Our offers are always subject to change unless a binding period is expressly stated.

(2) We may accept an order from the customer, which constitutes an offer pursuant to § 145 BGB, within six weeks.

(3) A contract is not concluded until we accept an order in writing.

(4) The order confirmation shall determine the scope of our deliveries and services.

3. Prices and Terms of Payment

(1) Unless otherwise agreed, all prices are ex works/warehouse, including loading at the factory/warehouse, but excluding packaging and transportation. Value-added tax at the applicable statutory rate shall be added to the prices.

(2) Payment must be made without any deductions, as follows:

a) Machinery: as specified in our order confirmation or quotations.

b) Services, accessories, and spare parts: as specified in our invoices. The customer shall bear the costs of payment transactions.

(3) Offsetting against counterclaims of any kind is excluded, unless the counterclaim is undisputed or has been legally established.

(4) If the buyer fails to make an agreed-upon down payment or the final payment by the due date, we are entitled to rescind the contract. In this case, we are entitled to compensation

for non-performance in the amount of a flat rate of 20% of the purchase price, unless the customer proves that we have incurred no damage or only minor damage. We remain entitled to claim any higher damages.

(5) Section 3(4) applies mutatis mutandis if the buyer withdraws from the contract without justification or refuses to accept delivery of the purchased item.

4. Delivery

(1) Our obligation to deliver is subject to actual and timely delivery to us by our suppliers.

(2) The start of any delivery period specified by us is contingent upon the clarification of all technical issues, the submission by the customer of required documents, permits, and approvals, as well as receipt of an agreed-upon down payment.

(3) Compliance with our delivery obligation further requires the timely and proper fulfillment of the customer’s obligations. We reserve the right to raise the defense of non-performance of the contract.

(4) If shipment, commissioning, or acceptance is delayed for reasons attributable to the customer, or if the customer culpably breaches other obligations to cooperate, we are entitled to demand compensation for the damages incurred by us in this regard, including any additional expenses. We reserve the right to assert further claims or rights. If storage takes place at our plant or warehouse, we may charge 0.5% of the invoice amount as a reimbursement for expenses for each full month of storage, up to a maximum of 5% of the invoice amount, plus value-added tax at the applicable statutory rate. The customer retains the right to prove that we have incurred no damage or only minor damage.

(5) Provided the conditions of paragraph (4) are met, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time the customer falls into default of acceptance or payment.

(6) If the customer is in default of payment for a previous delivery, we are entitled to withhold deliveries without being obligated to compensate for any resulting damages.

(7) We are entitled to make and invoice partial deliveries, provided that each partial delivery constitutes a self-contained performance.

(8) We are liable in accordance with statutory provisions to the extent that the underlying purchase contract is a fixed-date transaction within the meaning of Section 286(2)(4) of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We are also liable in accordance with statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that its interest in the further performance of the contract has ceased to exist.

(9) In all other respects, Section 8 applies to our liability for damages.

5. Advance Payment Guarantee

If, in accordance with an agreement with the customer, we have provided an advance payment guarantee for an advance payment made by the customer, the customer is obligated to return the guarantee document to us within one week of delivery of the purchased item.

6. Retention of Title

(1) We retain title to the goods until all payments under the delivery contract have been received.

(2) Furthermore, we reserve title to the goods until we have received all payments arising from the business relationship with the customer.

(3) If the customer acts in breach of the contract, in particular in the event of late payment, we are entitled to take back the goods. Our taking back of the goods constitutes a withdrawal from the contract. Upon taking back the goods, we are authorized to sell them; the proceeds from such sale shall be applied toward the customer’s outstanding obligations—less reasonable costs of sale.

(4) The customer is obligated to handle the goods with due care; in particular, the customer is obligated to insure them at the customer’s own expense against fire, water, and theft damage at replacement value. If maintenance and inspection work is required, the customer must perform such work in a timely manner at the customer’s own expense.

(5) In the event of seizures or other interventions by third parties, the customer must notify us immediately in writing so that we may file a lawsuit in accordance with § 771 of the German Code of Civil Procedure (ZPO). To the extent that the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for the loss incurred by us.

(6) The customer is entitled to resell the goods in the ordinary course of business; however, the customer hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim that arise for the customer from the resale against its buyers or third parties, regardless of whether the goods were resold without or after processing. The customer remains authorized to collect this claim even after the assignment. The customer is only authorized to assign the claims—including the sale of claims to factoring banks—with our prior written consent. Our right to collect the receivable ourselves remains unaffected by this. We undertake, however, not to collect the receivable as long as the customer meets its payment obligations from the proceeds received, does not fall into default, and, in particular, no petition for composition or insolvency proceedings has been filed or payments have been suspended. If this is the case, however, we may demand that the customer disclose to us the assigned receivables and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. At our request, the customer is obligated to immediately inform its customers of the assignment to us—unless we do so ourselves—and to provide us with the information and documents necessary for collection.

(7) Any processing or transformation of the goods by the customer shall always be carried out on our behalf. If the goods are processed together 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 (final invoice amount, including VAT) to the value of the other processed items at the time of processing. In all other respects, the same provisions apply to the item created by processing as to the goods delivered under retention of title.

(8) We undertake to release the security to which we are entitled at the customer’s request to the extent that the realizable value of our security exceeds the claims to be secured by more than 10%; the selection of the security to be released is at our discretion.

7. Warranty

(1) Claims for defects by the customer are contingent upon the customer having properly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).

(2) If the goods are defective, we shall, at our discretion, provide subsequent performance by either remedying the defect or delivering a new, defect-free item. In the event of rectification of the defect or replacement delivery, we are obligated to bear all expenses necessary for the purpose of subsequent performance, in particular transportation, travel, labor, and material costs, provided that these costs are not increased by the fact that the goods were moved to a location other than the place of performance.

(3) If the subsequent performance fails, the customer is entitled, at his or her discretion, to rescind the contract or demand a price reduction.

(4) If the complaint proves to be unjustified, the customer shall bear the costs incurred as a result of our involvement.

(5) The customer’s claims for material defects are subject to a one-year statute of limitations beginning with the delivery of the purchased item to the customer. Excluded from this are claims for damages arising from injury to life, limb, or health and/or claims for damages resulting from harm we caused through gross negligence or willful misconduct. In such cases, the statutory limitation periods apply.

8. Claims for Damages

(1) We shall be liable in accordance with statutory provisions if the customer asserts claims for damages based on willful misconduct or gross negligence, including willful misconduct or gross negligence on the part of our representatives or agents. Unless we are accused of an intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage.

(2) We are liable in accordance with statutory provisions to the extent that we culpably breach a material contractual obligation; however, even in this case, liability for damages is limited to the foreseeable, typically occurring damage.

(3) Liability for culpable injury to life, body, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

(4) Unless otherwise provided for above, liability is excluded.

9. Total Liability

(1) Any liability for damages beyond that provided for in Section 8 is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault at the time of contract conclusion, from other breaches of duty, or from tortious claims for compensation for property damage pursuant to Section 823 of the German Civil Code (BGB).

(2) The limitation set forth in paragraph (1) also applies to the extent that the customer demands reimbursement for futile expenses in lieu of a claim for damages in lieu of performance.

(3) To the extent that our liability for damages is excluded or limited, this also applies with respect to the personal liability for damages of our employees, workers, staff, representatives, and vicarious agents.

10. Place of Performance, Jurisdiction

(1) The place of performance for all claims arising from the contractual relationship is Mülheim an der Ruhr.

(2) The place of jurisdiction is North Rhine-Westphalia.

(3) The law of the Federal Republic of Germany applies; the applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.