General Terms & Conditions of Metalltechnik Menges GmbH



§ 1 Scope

1. Our sales conditions apply exclusively; we do not recognise conditions of the ordering party that contradict ours or deviate from them unless we expressly agree to their application in writing.
Our sales conditions also apply exclusively even if we carry out delivery to the ordering party without reservation, in full knowledge of conditions of the ordering party that contradict or deviate from these conditions.
2. All agreements made between us and the ordering party for the purpose of executing this contract are to be set down in writing in this contract.
3. Our sales conditions apply only with respect to business enterprises as defined in § 14 Para. 1, § 310 Para. 1 BGB.
4. These sales conditions apply also for all future transactions with the ordering party.

§ 2 Offer – Conclusion of Contract

1. Our offers are subject to change to the extent that the term “binding” is not added.
2. We reserve the property and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without our expressed written permission. Before forwarding them to third parties the ordering party requires our expressed permission.
We will only consider offers from the ordering party accepted if we issue an expressed statement. Not responding to such an offer does not constitute acceptance. The like applies to commercial letters of confirmation communicated only in electronic form, unless the electronic form of communication was agreed upon mutually in that business arrangement and the communication is sent to the address explicitly specified for the receipt of such statements.

§ 3 Prices – Payment Terms

1. The list prices valid on day of delivery apply.
2. To the extent nothing else is arranged in writing, our prices apply ex-works excluding packing and plus VAT in the currently valid amount.
3. Deduction of a discount for prompt payment requires special written agreement.
4. Our invoices are to be paid without deduction within 30 days of the billing date. In the event of late payment, we are entitled to apply default interest starting on the 31st day without dunning and once we have given noticed, to demand default interest in the amount of 8 % above the current bank rate of the Deutsche Bundesbank.
We reserve the right to assert claims of higher default damages.
5. We reserve the right to alter our prices as appropriate if, after the contract has been concluded, there are increases or decreases in our costs, especially owing to labour agreements, changes in materials prices or fluctuations in currency values. We will provide documentation of these to the ordering party on request.
6. Alloy surcharges are not included in our prices and will be calculated at the actual value on release [for delivery] date.

§ 4 Set-Off and Retention Rights

The ordering party is only entitled to offset if his counter-claims have been legally established, are undisputed or have been recognized by us. The ordering party is only entitled to exercise a right of retention to the extent that his counter-claim is based on the same contractual relationship.

§ 5 Delivery

1. We will indicate delivery time approximately and it is understood as starting from the time of release for delivery from the factory. The start of the indicated delivery time assumes that all technical questions have been resolved, and that the ordering party has promptly and properly fulfilled all of his obligations. The objection of an unfulfilled contract is reserved.
2. If the ordering party comes into default of delivery or culpably violates other duties of co-operation, we are entitled to demand compensation for any damages that we incur as a result including compensation for any additional expenditures. We reserve the right to assert further claims. To the extent that the preconditions are met, the risk of accidental loss or degradation of the object purchase transfers to the ordering party from the moment at which that party enters default of delivery or debtor’s default.
3. Claims to compensation for damages (including any subsequent damages) are excluded, irrespective of Para. 4; the like applies to compensation for compensation of expenses.
4. The liability exclusion regulated under Para. 3 does not apply, insofar as an exclusion or limitation of liability to damages arising from injury to life, limb or health attributable to an intentional or negligent dereliction of user’s obligations or an intentional or negligent dereliction of user’s obligations on the part of sub-contractors or legal agents of the user is agreed upon; it also does not apply to the extent that an exclusion or limitation of liability is agreed upon for other damages that are attributable to intentional or grossly negligent dereliction of [user’s] obligations on the part of a legal agent or sub-contractor of the user. To the extent that we culpably violate a contractual obligation or “cardinal” duty, liability is not excluded but restricted to damages that are both foreseeable and typical for the type of contract.
In the case of compensation for expenses, the above applies analogously.

§ 6 Transfer of Risk – Packaging Costs

1. To the extent that nothing else derives from the contract confirmation, delivery “ex works” is agreed to.
2. If the good is sent to the ordering party at his request, the risk of accidental loss or degradation of the good transfers to the ordering party on dispatch, at the latest on leaving the factory/warehouse. This applies regardless of whether the good is dispatched from the place of fulfilment or who bears the freight costs.
3. We will also bill the necessary packaging.
4. The transportation company will be contracted by the ordering party. If we are supposed to contract the transportation company, this will only be done in the name of the ordering party.
5. The ordering party is obligated to provide for disposal of the packaging at own cost. The packaging will not be recovered.

§ 7 Warranty and Liability

1. If a defect for which we are responsible exists, we are entitled to provide remedy or replacement, at our discretion. The precondition for this is that the defect is not insignificant. In the case of remedy, we are obligated to bear the costs for transportation, labour and materials to the extent that these are not increased due to the delivered good being kept at a location other than the place of fulfilment.
Should one of the two or both of these types of subsequent fulfilment prove impossible or prohibitive, we are entitled to refuse it.
We can also refuse subsequent fulfilment as long as the ordering party does not fulfil his payment obligations to us in a scope that corresponds to that portion of the delivery free of defect.
2. If the remedy or delivery of replacement is not completed within a reasonable period of time – taking our delivery options into account – or if the remedy and/or delivery of replacement fails, the ordering party can demand a reduction of compensation (decrease) or withdraw from the contract.
3. The ordering party’s rights in case of defect assume that this party properly executed the duties to inspect for and report defects under § 377 HGB [German Commercial Code].
4. To the extent that nothing else is specified below (Para. 6), additional claims on the part of the ordering party are excluded, irrespective of their legal basis (especially claims deriving from violation of contractual primary and accessory obligations, compensation for expenses with the exception of those § 439 II BGB [German General Civil Code], impermissible actions as well as other tort liability); this applies especially to damages that are not incurred directly on the delivered item as well as claims to compensation for lost profits; also included are claims that do not result from defective nature of the item purchased.
5. The provisions above apply even in delivery of a different item or in a lower amount.
6. The liability exclusion regulated in Para. 4 does not apply insofar as an exclusion or limitation of liability for damages deriving from injury to life, limb or health attributable to an intentional or negligent dereliction of user’s obligations by the user or the user’s legal agent or sub-contractor is arranged; it also does not apply to the extent that an exclusion or limitation of liability is agreed upon for other damages that are attributable to intentional or grossly negligent dereliction of [user’s] obligations on the part of a legal agent or sub-contractor of the user.
To the extent that we culpably violate a contractual obligation or “cardinal” duty, liability is not excluded but restricted to damages that are both foreseeable and typical for the type of contract; in other [cases] it is excluded in accord with Para. 4.
This exclusion of liability also does not apply in cases under which liability is required under the Product Liability Act in the case of defects in the delivered item [that are liable] for personal injuries or property damage to privately used object. It also does not apply in the case of assumption of a guarantee or assurance of a property, if it precisely a defect encompassed by these that entails our liability. In the case of compensation for expenses, the like applies analogously.
7. No warranty is accepted for damages that are attributable to improper use, incorrect assembly by the ordering party or third parties, natural wear, deficient or careless treatment, or attributable to improper modifications or repairs by the ordering party or third parties that are undertaken without our approval.
8. Claims for subsequent fulfilment, compensation for damages and compensation for expenses expire one year after delivery of the purchased item.
This does not apply in the case of an item which is used for a structure in accord with its customary use and has caused it be defective; in this case expiration occurs only after 5 years.
Claims to reduction [of price] or exercise of the right of withdrawal are excluded, to the extent that the claim to subsequent fulfilment has expired.
The ordering party can however refuse to pay the purchase price in cases described in S. 3 to the extent that he would be entitled to withdrawal or to reduction under those terms; in the case of exclusion of withdrawal and subsequent refusal to pay, we are entitled to withdraw from the contract.
9. Claims deriving from manufacturer’s egress remain unaffected by this section.

§ 8 General Restrictions on Liability

1. To the extent that nothing else is specified in these provisions, we are liable to provide compensation for damages due to violation of contractual or extra-contractual duties or in case of contract negotiations only in cases of malicious intent or gross negligence by our legal agents or sub-contractors as well as in cases of culpable violation of essential contractual duties. In the case of culpable violation of essential contractual duties, we are liable only for those damages that are typical for this type of contract and are foreseeable – except in cases of malicious intent or gross negligence of our legal agents or sub-contractors.
2. The liability restrictions above do not apply in cases of injury to life, limb or health.

§ 9 Reservation of Title

1. We reserve title to the item delivered until the complete payment of all claims deriving from the delivery contract. This applies also to all future deliveries, even if we do not explicitly appeal to this every time. To the extent that we arrange the payment of the owed purchase price through the bill of exchange process with the ordering party, the reservation also extends to the redemption of the bill of exchange we accepted by the ordering party and does not expire when we merely credit the check that we have received.
2. In the case of behaviour by the ordering party that violates the contract, especially default of payment, we are entitled to recover the purchased item. Recovery of the purchased item by us does not constitute withdrawal from the contract unless this is explicitly stated in writing. If we place a line on the purchased item, this always constitutes withdrawal from the contract. We are authorized to recover the purchased item for the purpose of realization and the proceeds from realization are to be applied to the ordering party’s obligations –minus appropriate recovery costs.
3. The ordering party is obligated to treat the purchased object with care; specifically, he is obligated to insure it at own cost against theft, fire or water damages, in an amount commensurate with the item’s new value. If maintenance or inspections must be carried out, the ordering party must carry these out in a timely fashion and at own cost.
4. As long as title has not been transferred, the ordering party must inform us without delay if the object delivered is subjected to a lien or other intervention by third parties. To the extent that the third party is not able to compensate us for the court and extra-judiciary costs of a legal complaint in accord with § 771 ZPO [German Code of Civil Procedure], the ordering party is liable for the shortfall due to us.
Herewith the ordering party cedes his claims to compensation against insurance companies that derive from damages of the type mentioned above or other compensation claims in the amount of his claims to the seller.
5. The ordering party is entitled to re-sale of the good under reservation of title in normal business transactions. The ordering party cedes to us here and now the claims on the good under reservation of title in the amount of the final invoiced total (including VAT). This cession applies regardless of whether the purchased item is re-sold without or after additional processing. The ordering party remains empowered to collect the claim even after this cession. Our authorization to collect the claim ourselves is not affected. We will not collect the claim as long as the ordering party fulfils his payment obligations out of the collected proceeds, is not in default and especially as long as not application for the initiation of bankruptcy proceedings has been submitted or a suspension of payments is in effect. If however this is the case, we can demand that the ordering party identify to us the ceded claims and their debtors, provide all of the information required for collection, surrender the associated documents and communicate the cession to the debtors (third parties).
6. Machining or processing or re-shaping of the purchased item by the ordering party is always performed in our name and on assignment for us. In this case the ordering party’s expectant right to the purchased item will continue in the re-shaped item. To the extent that the purchased item is processed with other items that do not belong to us, we obtain co-ownership in the new item in proportion to the objective value of the purchased item to the other objects processed at the time they were processed. The like applies in cases of mixing. To the extent that mixing is performed in such a way that the ordering party’s item is to be regarded as the main item, it is agreed that the ordering party will transfer proportional co-ownership and will protect the sole or co-ownership so obtained for us. To secure the supplier’s claims against the ordering party, the ordering party cedes such claims to us that accrue to him against a third party through the integration or combination of the good under reservation of title in or with a property [real estate]; we accept this cession here and now.
7. The ordering party is obligated, to send us an itemization of the still-present goods under reservation of title as soon as he has suspended payments and this immediately after announcement of suspension of payments, including a information on the degree to which it has been processed, and a list of claims against third party debtors along with billing records.
8. We pledge that we will release the securities owed to ordering party to that party on request to the extent that their value exceeds the claims to be secured by more than 20 %.

§ 10 Special Conditions for Hired Labour

1. If work pieces are delivered with dimensioning errors by customers for hired work, we reserve the right either to send the parts back for re-working or to re-work them ourselves for compensation, if this is possible in our place of business. 2. The risk for rejects, particularly when setting up the machines, must be borne by the ordering party. 3. If during hired work additional processing is required – conditioned either through poorly processed material or defective preparation of the parts to assembled – these costs will be invoiced separately. 4. In the event that tools break due to poor preparation or material defects in the parts to be processed, the costs will likewise be borne by the ordering party. 5. Should work pieces supplied by the ordering party become unusable resulting from an error in work during hired labour we are liable only for the work that we carried out – except in case of malicious intent and gross negligence. Warranty obligations will be fulfilled through remedy by carrying out the same processing again without billing, if new work pieces are provided for us. Our liability is restricted– except in case of malicious intent and gross negligence– to the amount of labour costs charged in the invoice. 6. Parts that we process will be tested by random sampling when they leave our premises. Any additional testing will be done only on the basis of a specific written agreement and in return for compensation for the additional costs. This exit examination does not release the ordering party (recipient of the goods) from his own obligation to inspect.

§ 11 Court of Jurisdiction –Place of Fulfilment

1. Our business headquarters in Gau-Algesheim is the court of jurisdiction. This applies also for complaints concerning checks or bills of exchange. We are however entitled to bring actions against the ordering party at his court of legal residence.
2. To the extent that nothing else issues from the order confirmation, our business headquarters is the place of fulfilment.
3. For all legal relationships between us and the purchaser, the applicable and authoritative laws of the Federal Republic of Germany affecting the legal relationships of domestic parties apply exclusively.

§ 12 Severability Clause

Should one or more provisions of this contract prove wholly or partially unenforceable, the enforceability of the remaining provisions and the concluded purchase contract are unaffected.

Metalltechnik Menges GmbH, Gau-Algesheim on 01.01.2006.