General Terms & Conditions of Dr. Haubitz GmbH & Co. KG

Status: January 2011

Section 1 Applicability of our Terms & Conditions

  1. These Terms & Conditions apply only to businesses as defined in Sections 14, 310 (1) of the German Civil Code (BGB), and are deemed to apply to all contracts irrespective of their civil-law status.
  2. All business transactions concluded with customers are made exclusively on the basis of these Terms and Conditions; any customers' terms & conditions which contradict or deviate from ours will not be entertained and are deemed not to apply unless we have explicitly confirmed their validity. Other terms & conditions shall not apply whether or not we have explicitly rejected them or objected to them, even if we deliver goods and/or services to the customer without such objection or rejection in the knowledge that terms & conditions that deviate from our own Terms & Conditions exist.
  3. In placing an order or, at the latest, when receiving the goods or services, the customer declares its agreement in full with our Terms & Conditions even if its order was accompanied by deviating terms & conditions.
  4. If a customer does not become aware of the existence or content of our Terms & Conditions until it receives our letter of confirmation, which may be in the shape of an invoice, its acceptance of that confirmation or invoice shall be deemed as acceptance without objection of our Terms & Conditions.
  5. These Terms & Conditions shall be deemed to apply to all future transactions with that customer and repeated explicit agreement of the Terms & Conditions is not required.

Section 2 Quotations & prices

  1. Our prices are subject to availability and non-binding on either party, unless we have explicitly confirmed them in writing. A contract does not come into existence until we have explicitly confirmed an order, which may be in the shape of an invoice, or through delivery or partial delivery without objection by the customer.
  2. Our quoted prices are net ex works in euros, unless otherwise explicitly agreed. Prices at the time of delivery shall be deemed to apply unless the order confirmation states a firm price. VAT is not included in our prices and is charged as at the day of invoicing in the appropriate amount and itemised in the invoice. The costs of packaging and shipping are to be borne by the customer.
  3. Quotations based on the provision of injection moulds for the manufacture of blanks presuppose the unrestricted functional performance of the moulds and the provision of accurate details on their use and characteristics (e.g. the rate of shots). If it transpires that one or more of these preconditions is not met, we shall not be obliged to adhere to our quotation or any delivery obligations already entered into by us provided we have notified the customer appropriately without delay on making the discovery.
  4. Where a customer provides us with blanks or other goods, our quotations presuppose that the goods reach us free of defects and undamaged. Where we discover defects in the goods delivered, we reserve the right to reject the order. This shall also apply if – despite random sampling – the concealed defects in the goods do not become apparent until we begin to process the order placed. In that case, the customer is obliged to reimburse us for our expenditure incurred by us up to our rejection of the order.
  5. We reserve the right to pass on to our customer price increases resulting from unexpected increases in wage costs, taxes, freight charges and material costs and the prices charged by our suppliers in the amount of the increase.
  6. Errors and omissions, such as typographical errors and miscalculations shall entitle us to withdraw from the contract if the customer does not agree to an adjustment in the contract. No further claims by the customer will be entertained in this case.

Section 3 Terms & conditions of payment

  1. Payment is due within 30 days of the date of invoice notwithstanding the moment of receipt of the goods, unless explicitly agreed otherwise.
  2. We reserve the right to apply payments received to outstanding debts irrespective of any terms of the customer to the contrary. Any costs or interest already incurred by us entitle us to offset amounts paid in accordance with Section 367(1) German Civil Code (BGB).
  3. Payments are not considered to have been made until we are able to access the amount. In the event of payments by bill of exchange or cheque, payment is not considered to have been effected until the bill of exchange or cheque has been honoured. Any costs incurred during this process are to be borne by the customer.
  4. The buyer is only entitled to offset payments against other claims if these are non-contentious, legally enforceable or non-litigious. This also applies to claims resulting from liability for material defects. A right of retention shall only accrue to the customer if the counterclaim arises from the same contractual agreement.
  5. Where a customer is in default of payment, we reserve the right to charge interest on the outstanding amount from the corresponding time amounting to 8 percentage points above the base lending rate as amended from time to time. We reserve the right to claim higher amounts of damages for defaulted payments. The customer is entitled to demonstrate that the higher damages were not incurred.
  6. Where payment by instalments has been agreed with the customer, all outstanding amounts shall become immediately due in a single sum as soon as the customer is in arrears with payment of one instalment.
  7. Where there is a reason to doubt the creditworthiness of the customer – e.g. due to a cheque not being honoured, payment arrears, overdue payments from previous deliveries or where it becomes the subject of insolvency proceedings – all outstanding claims in our favour resulting from the business relationship shall become due immediately. All subsequent services or deliveries will only be effected at our discretion either against prepayment or delivery against payment. Otherwise we reserve the right to withdraw from the contract and claim damages in lieu of performance.

Section 4 Delivery of the goods

  1. The customer is hereby notified that over-delivery or delivery shortfalls amount to as much as 3% are technically unavoidable. Such over-delivery or delivery shortfalls do not constitute any liability for material defects. The amount invoiced is based on the quantities actually supplied. Any complaints relating to the quantity of goods delivered must be communicated to us within 14 days of receipt of the goods as otherwise the delivered quantity is considered to have been approved.
  2. As a rule, the type and quantity of the product delivered are given in the confirmation of order. We reserve the right to supply partial deliveries.
  3. Shipping charges and risks are for the customer's account. We reserve the right to insure the goods shipped in the name of and for the account of the customer, but are not obliged to do so.
  4. Transport and other packaging in compliance with German packaging legislation is not returnable. The customer undertakes to arrange for disposal of the packaging at its sole cost. Packaging in transit is at the risk of the customer.

Section 5 Delivery deadlines

  1. Delivery deadlines are deemed to be non-binding, unless explicitly defined by us as binding and confirmed in writing. Delivery deadlines begin at the earliest on conclusion of the contract but not before clarification of all technical and commercial issues.
  2. The delivery deadline is deemed to have been met if the goods have left our factory by the time the deadline expires or we have notified the ordering party that they are ready for dispatch. Adherence to the delivery deadline presupposes proper, timely performance of all obligations accruing to the customer. If these obligations have not been met, the delivery deadline is considered to have been interrupted. This shall apply in particular in the event of non-payment of an agreed downpayment.
  3. Even if the delivery deadline is exceeded, the customer remains liable for accepting the goods.
  4. Where no explicit delivery date by the calendar has been set, a delay in delivery assumes that the customer has given us a reasonable extension period of at least two weeks. This period begins with receipt of the notification by us.
  5. Circumstances beyond our control which result in a delay in delivery, in particular cases of war, force majeure and all other matters beyond our control will result in extended delivery times or an agreed extension period where fulfilment of the contract by us is impaired by such events. We undertake to notify the customer of such events as soon as we can, unless they have already been made public.
  6. After expiry of a fruitless additional period of time for the delivery, the customer is entitled to withdraw from the contract with regard to that part of the contract that has not yet been fulfilled. In this case, the customer is not entitled to claim for damages arising from the delay.
  7. In the event of delays in delivery, the customer has a right to damages in lieu of fulfilment only if the delay in delivery is as a result of intent or gross negligence. A claim of this type is restricted to 3% of the value of the delayed delivery for each complete week of the delay, but not exceeding 15% of the value of the delivery. This liability limitation shall not apply in the case a commercial transaction for delivery by a fixed date was agreed.
  8. We are liable under German law where the delay in delivery is as a result of a culpable infringement of a significant contractual obligation, however, in these cases, liability for damages is restricted to the type of predictable damage typically anticipated in this line of business.

Section 6 Moulds

  1. Moulds and other equipment created for the production of ordered products shall remain our property subject to the following provisions.
  2. The customer may purchase tooling to be manufactured by us. In such a case, we reserve property in the items until the purchase price has been paid in full. If the costs for manufacture of the items increases for reasons beyond our control, the customer shall pay the increased price.
  3. The costs for manufacturing the moulds are to be paid on sending the initial sample or, if no initial sample has been agreed, on notification that the mould is finished.
  4. On transfer of title in a mould to the customer, we shall remain authorised to hold and use that mould until completion of the order for which the moulds were made. Unless otherwise explicitly agreed, we reserve the right to use the moulds to manufacture products for other customers.
  5. If the customer provides the moulds or purchases a mould manufactured by us, we undertake to cover the costs of maintaining and storing the mould in an appropriate manner for payment by the customer of a reasonable lump sum, where the period of this maintenance and storage shall not exceed ten years after the last scheduled delivery to the customer. On expiry of this period, we shall offer to release the mould to the customer. If the customer waives the release offer or if it does not accept our quotation within a month of receipt, the mould reverts to our property and we are entitled to use or dispose of it as we wish.

Section 7 Retention of title

  1. We retain title in all goods supplied by us and in the new item created by machining, restructuring or combining the items delivered by us with other objects until all outstanding amounts due to us by the customer from this order or any earlier order have been settled in full. In the event of behaviour by the customer in violation of this contract, in particular in the case of payment arrears, we reserve the right to recover the goods delivered and process or dispose of them, where the income generated by that processing or disposal will be credited against the amounts due from the customer - less the costs for the disposal. This shall also apply if an application is made to commence insolvency proceedings against the customer.
  2. The customer may resell the delivered goods in the proper course of business. The rights to payment accruing to the customer through that sale are hereby assigned to us and we hereby accept this assignment. The customer is hereby empowered to collect from third parties any claims resulting from the resale or further processing of the goods provided it meets its payment obligations to us. We reserve the right, in the event of payment arrears, to cancel this empowerment and the customer shall communicate to us the details of the claims assigned and the identities of the debtors, and all other details required by us to call up these amounts and communicate the assignment to the debtors.
  3. If the delivered goods are processed, converted or incorporated as an integral part of some other combined product, we become joint owners of that other product to an extent which is proportionate to the value of our property in the new product at the time of its incorporation. The provisions of the preceding Section (2) shall apply appropriately.
  4. The buyer undertakes to store the goods delivered separately and to mark them accordingly. In addition, the customer shall protect the goods against damage through incorrect storage, theft and other forms of damage with all due care and attention and insure them at full replacement value. The rights to payment accruing to the customer through that insurance cover are hereby assigned to us and we hereby accept this assignment.
  5. In the event of action to impound assets and in the event of attempts by third parties to seize the goods delivered or the claims generated by their sale, the customer shall notify that other party of our ownership rights. Furthermore, the customer shall notify us without delay of any deterioration in our property by third parties to enable us to take appropriate countermeasures. Where the third party is not in a position to repay to us the costs of the countermeasures both in court and out-of-court, the customer becomes liable for any expenses or losses incurred by us.

Section 8 Transfer of risk

  1. The risk of accidental destruction and accidental damage to the goods is deemed to be transferred to the customer as soon as the consignment has been handed over.
  2. If a sale by dispatch has been agreed, risk is transferred to the customer when the seller has handed the goods over to the forwarder, carrier or other person or body designated to dispatch the goods, even if we are bearing the costs of the shipment.
  3. If the goods are ready for shipping but dispatch or acceptance is delayed for reasons beyond our control, risk is transferred to the customer on notification that the goods are ready for shipping.
  4. If the goods are to be collected by the customer from our facility, risk is transferred to the customer on notification that the goods are ready for shipping.
  5. The provisions in this section shall also apply to goods and materials supplied by the customer for further processing.

Section 9 Liability for material defects

  1. On arrival of the goods, they shall be inspected without delay by an appropriately authorised person to ensure accuracy, completeness and lack of material defects. Any obvious defects shall be communicated to us in writing without delay, and concealed defects within one week of their detection in writing. Any violation of these obligations will result in immediate loss of all claims by the customer resulting from liability for material defects. Defects in one part of the products delivered does not entitle the customer to reject the entire delivery.
  2. Where we create a quotation on the basis of a drawing, we shall not accept any liability for the function performance or suitability of the finished goods for incorporation in other items.
  3. The criteria contained in our confirmation of order shall be considered as the agreed characteristics.
  4. Claims resulting from liability for material defects are subject to the statute of limitations one year after the transfer of risk as defined under Section 8 of these Terms & Conditions. Such claims cannot be assigned to third parties. The period of limitations in the event of a right of recourse as defined in Sections 478 & 479 German Civil Code (BGB) remains unaffected.
  5. To enable us to assess the presence or otherwise of liability, the non-conforming goods may, at our discretion, be inspected at the customer's facility or be returned to us. In the event goods are returned to us, they must be accompanied by a details of the item number or batch number and a description of the defect as otherwise the complaint will not be processed. The delivery subject of the complaint may not be used or sold by the customer until the issue of liability has been settled.
  6. In the event we accept liability for a material defect, we shall, at our discretion, provide replacement free-of-charge against release of the non-conforming goods or reimburse the purchase price pro rata. Any and all additional claims for liability for material defects are precluded. The due date for payment of the purchase price is not affected by any complaints about defects unless the defects have been recognised by us in writing or are legally enforceable.
  7. We cannot be held liable for material defects which do not occur to the goods delivered themselves, in particular not for any indirect damages such as lost profits or other damages to the customer's assets. This disclaimer shall not apply in the case of intent or gross negligence, or in the cases listed at Section 10(2) Sentence 1 of these Terms & Conditions.
  8. Our liability is financially restricted to the amount of the consideration invoiced by us for the goods or services delivered.

Section 10 General liability restrictions

  1. No claims for damages, for whatever legal reason, will be entertained – unless otherwise agreed in these Terms & Conditions. This disclaimer shall not apply if the cause of the damage results from intent or gross negligence.
  2. We shall only accept liability for claims for damages resulting from injury to life and limb or health, or from product liability legislation or from breach of a significant contractual obligation if we were responsible for the breach of duty. Apart from the above claims, we do not accept any liability whatever unless damage or injury is the result of intent on our part or grossly negligent violation of our obligations. Any violation of obligations by our agents or legal representatives is the same as a violation by us. Where our liability is excluded or restricted, this also applies to the personal liability of our employees, workers, external contractors, officers of the company and agents.
  3. In all cases, liability for damages is restricted to the predictable damage typically anticipated in this line of business. Where we are held liable for damages due to simple negligence, the amount of damages due for damage to property or injury is restricted to the coverage of our third party insurance policy.
  4. The period of limitations for all claims for damages – irrespective of whom the claims are made against – is governed by Section 9(4) of these Terms & Conditions.

Section 11 Place of performance, court of jurisdiction, applicable law

  1. Our business address is in Solingen, which is the place of performance and the location of the Court of jurisdiction. We reserve the right, however, to file claims at the courts having jurisdiction for the customer's business.
  2. All relationships between us and the customer are subject exclusively to the laws of the Federal Republic of Germany and the provisions of the UN commercial codes and international civil law are hereby excluded.

Section 12 Miscellaneous

  1. Claims arising in connection with this contract, irrespective of the type and their legal foundation, shall not be assigned either in whole or in part or transferred to a third party.
  2. If any clause in these terms & conditions or the subsequently concluded agreements should be or become invalid, the remainder of the contract shall remain unaffected.
  3. The customer is deemed to agree that all necessary personal data resulting from the business relationship are stored for company use in accordance with data protection legislation.
  4. The contractual parties undertake to maintain secrecy on all commercial and technical details of which they become aware as a result of these business relations.
  5. Any modifications or addenda to these terms & conditions must be in writing. This agreement on the written form can only be amended or modified pursuant to a written agreement of the parties.
  6. Suppliers shall comply with the provisions defined in EU Council Regulation no. 1907/2006 (REACH - Registration, Evaluation, Authorisation and Restriction of Chemicals). Details can be found on the following websites:
    www.acea.be/reach
    http://echa.europa.eu
  7. We expect all our suppliers to adhere to all relevant environmental and legislative provisions, in particular regarding adherence to regulations prohibiting the use of specific substances (e.g. EC Directive 2000/53/EC End-of-life Vehicles).

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