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Standard terms and conditions

Conditions of sale

IWE Industriewärmetechnik & Elektrotechnik GmbH
Management: Frank Kreutz
Lessingstr. 20
D-58706 Menden

 

§ 1

Area of applicability

(1)

Our standard terms and conditions apply to all present and future legal relationships between us and our clients. We hereby explicitly contradict any standard terms and conditions of our contracting partners that conflict with our standard terms and conditions to the extent that they include provisions that are not contained in our standard terms and conditions, and where the standard terms and conditions of the purchaser conflict with legal regulations, annul them, or render them inoperative.

(2)

Our standard terms and conditions also apply to all future transactions with our clients.

(3)

To the extent that provisions are not contained in our standard terms and conditions, German law shall apply exclusively, to the exclusion of the laws on the international purchase of movable property, even if the client has his registered office abroad.

(4)

All agreements made between us and the purchaser for the implementation of this contract are shown in writing in the contract.

§ 2

Offer - offer documents

(1)

Offers we make are subject to change without notice and are non-binding. An order from our contracting partner is a binding offer.

(2)

We may accept this offer at our choice within four weeks by sending a confirmation of the order.

(3)

Only the written order from the client and the confirmation of the order, should one have been sent to the client, are definitive for the content of the contractual agreement. The client must check the confirmation of the order immediately and notify us in writing of any discrepancies from his order.

(4)

The written form is explicitly agreed for all statements by the contracting partner in connection with the performance of the respective contract. It is assumed that the order from the client and/or the confirmation of the order contains all the contractual agreements.

§ 3

Prices - terms of payment

(1)

Unless otherwise shown in the confirmation of order, our prices are applicable “ex works”, excluding packaging. The latter is billed separately.

(2)

Prices do not include the legal value-added tax; it will be shown separately in the invoice in the legal amount on the day of billing.

(3)

The deduction of a discount requires a special written agreement.

(4)

Unless otherwise agreed, the amounts invoiced are due for payment to us without deduction immediately after acceptance of the work performance, specifically 40% on confirmation of the order, and 60% on readiness to deliver.

If a payment date is agreed between us and our client, the client automatically enters into default on the expiry of the payment date (§ 286 subsection 2 of the BGB [Bürgerliches Gesetzbuch, German Civil Code)] without any requirement for a further demand for payment.

Following the expiry of the payment date, the invoiced amount is to bear interest at the legal interest rate of 8% above the basic rate of interest.

If no payment date is agreed, default in payment occurs either on a demand for payment or 30 days at the latest following the due date and receipt of the invoice. The client has to pay the sum of €10.00 for each further demand for payment, unless we give evidence of a greater loss or the client gives evidence of a lower loss. § 353 HGB [Handelsgesetzbuch, Commercial Code] remains unaffected.

(5)

When bills of exchange and cheques are accepted, the client bears the costs of discounting and redemption.

(6)

The purchaser is only entitled to rights to claim a set-off against our claims if his counterclaims have been determined as legally binding, are uncontested, or have been acknowledged by us. He is furthermore only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.

§ 4

Terms of delivery and delivery period

(1)

The delivery period begins as soon as all the details of performance have been clarified and both parties are in agreement on all the conditions of the transaction, and is calculated from completion in the production plant.

(2)

Partial deliveries and deliveries before the due date by IWE Industriewärmetechnik und Elektrotechnik GmbH are permissible.

(3)

Compliance with production and delivery deadlines is subject to correct and timely delivery by subcontractors. We shall notify the purchaser immediately of any delays, stating reasons and quoting new production and delivery dates. The same applies if the purchaser changes or extends the originally agreed service and delay is incurred thereby.

(4)

Production and delivery deadlines are to be extended appropriately in the event of the occurrence of hindrances attributable to force majeure. These also include measures in the context of industrial disputes, in particular strike and lockout. This also applies if unforeseen hindrances and circumstances occur for subcontractors.

(5)

Compliance with production and delivery deadlines presupposes the fulfilment of contract conditions by the client.

(6)

If shipping is delayed at the wish of the client, we are entitled, after a reasonable time, to dispose of the delivery item in some other way, to deliver to the client in accordance with an appropriately extended time limit, and to charge the storage costs incurred.

§ 5

Transfer of risk

(1)

Delivery takes place in all cases at the client's risk. The risk is also transferred to the client at the time of shipping in the case of partial deliveries and deliveries before the due date. If shipping is delayed by circumstances for which the client is responsible, the risk is transferred to the client on the day that shipping was ready.

(2)

Insurance against transport damage is arranged only at the order and cost of the purchaser.

(3)

Transport packaging and all other packaging, in accordance with the Verpackungsordnung [regulation on packaging], will not be accepted back. The purchaser is obliged to ensure the disposal of the packaging at his own cost.

(4)

Refusal of acceptance is permissible only on grounds of substantial defects.

§ 6

Guarantee against defects

(1)

The quality of the goods that we are obliged to provide results exclusively from the contractual agreements with our client and not from any other promotional statements, prospectuses, discussions and the like. The provision of a guarantee, e.g. within the meaning of § 443 of the BGB, is not connected therewith.

(2)

We are liable for defects as follows, to the exclusion of all further claims:

(a)

We guarantee the freedom from defect of the goods for six months from the time of delivery, unless a compulsory longer legal guarantee obligation is applicable.

(b)

Any defects discovered are to be notified to us in writing immediately, but not more than eight days at the latest after receipt of the goods.

(c)

No guarantee is given against damage arising for the following reasons:

Unsuitable or improper use, defective assembly and/or commissioning by the customer or by a third party, natural wear and tear, defective or negligent treatment, incorrect maintenance, unsuitable tools and equipment, substitute materials, chemical, electrochemical or electrical influences, unless they are attributable to our fault.

(d)

No liability will be accepted for damage as a consequence of natural wear and tear.

(e)

The supplier is not obliged to eliminate defects until the purchaser fulfils his payment obligations.

(3)

The client can make no claims against us for compensation, in particular claims for damages, going beyond the claims granted to him in these provisions, or claims on grounds of extra-contractual liability or other rights because of any disadvantages associated with the delivery, regardless of the legal basis that he invokes. This disclaimer does not apply in the event of intentional negligence, gross negligence by the owner of our business or our managerial staff or in the event of culpable infringement of substantial contractual obligations. In the event of culpable infringement of substantial contractual obligations, we are liable only for reasonably foreseeable damage typical of the contract, except in cases of intention or gross negligence by the owner of our business or our managerial staff.

(4)

To the extent that, under § 478 subsection 2 of the BGB, the client can claim against us for reimbursement of expenditures that the client for his part had to make to consumers or to another businessperson, such claims for damages by our client are also excluded. If the goods delivered by us are dealt with, finished or in any other way changed by our client, we are no longer a supplier within the meaning of § 478 subsection 2 of the BGB, so our client is not entitled to claims for reimbursement of expenditures arising from this provision.

(5)

Further claims by the client, in particular reparation for damages that did not originate in the delivery item itself, are excluded.

§ 7

Retention of title

(1)

We reserve ownership of the delivery item until all payments arising from the contract have been received. In the event of behaviour by the purchaser contrary to the terms of the contract, in particular in the event of arrears with payments, we are entitled to take back the delivered goods. The assertion of our rights to retain ownership is not to be regarded as a withdrawal from the contract. On the contrary, our rights arising from the contract of sale, in particular our rights to reparation for damage and loss of profit, remain with us, besides entitlement to the surrender of our property.

(2)

A petition for the opening of insolvency proceedings entitles us to withdraw from the contract and to demand the immediate return of the delivery item.

(3)

The purchaser is obliged to treat the delivery item carefully; he is obliged in particular to insure itadequately, at his own cost, against damage by fire, water, storm, burglary or theft at their reinstatement value. If maintenance and inspection work is necessary, the purchaser must carry this out at his own cost in a timely way.

(4)

The customer may neither sell nor pledge the delivery item nor offer it as security. In the event of attachments or other dispositions by third parties, the purchaser is to notify us without delay in writing so that we can institute legal proceedings under § 771 of the ZPO [Zivilprozeßordnung, Code of Civil Procedure]. If a third party is not in a position to reimburse us with the judicial and extrajudicial costs of legal proceedings under § 771 of the ZPO, the purchaser shall be liable for the financial loss incurred by us.

(5)

The processing or transformation of the delivered goods by the purchaser shall always be carried out for us. If the delivery item is processed with other items not belonging to us, we are to acquire a share in the ownership of the new property in the proportion of the value of the delivery item to the other processed items at the time of processing. In general, the same is to apply to the new thing arising from processing as applies to the item delivered under reservation.

(6)

If the delivery item is inseparably mixed with other items not belonging to us, we are to acquire a share in the ownership of the new property in the proportion of the value of the delivery item to the other mixed items at the time of mixing. If the mixing takes place in such a way that the item of the purchaser is to be regarded as the main item, it is considered as agreed that the purchaser assign to us a proportionate share in its ownership. The purchaser shall hold the sole ownership or shared ownership thus arising on our behalf.

(7)

To secure our claims against him, the purchaser also assigns to us the claims against a third party arising from the combination of the delivery item with a parcel of real estate.

(8)

In the event of conduct of the client contrary to the terms of the contract, in particular in the event of delay in payment, the entire balance owed is immediately due for payment. In these circumstances, we are entitled to demand the surrender of the goods and to fetch them from the customer's premises. The client then has no right to their possession.

§ 8

Cancellation costs

If the purchaser withdraws from an order he has placed, we may claim 10% of the agreed compensation for work for the costs incurred in processing the order and for lost profits, without prejudice to the option of demanding higher actual damages. The customer shall remain free to prove lower damages.

§ 9

Confidentiality

The client is obliged to deal in strict confidence with all information, expertise and other business secrets in connection with the execution of the respective order and to pass no information, documentation, drawings, sketches or other documents to third parties or otherwise make them available to third parties without explicit agreement from us. KREUTZ Anlagenservice GmbH likewise deals confidentially with the client's documents.

§ 10

Place of jurisdiction

If the client is a fully qualified merchant, a legal person under public law or a special asset of the Federal Government under public law, or if his domicile or business head office is outside the Federal German Republic, the court at the business head office of KREUTZ Anlagenservice GmbH in Menden is responsible for all disputes arising from the contractual relationship. KREUTZ is also entitled to bring an action at the business head office of the client/purchaser.

§ 11 Verbindlichkeit des Vertrages

Should any of the above provisions be ineffective, it is to be replaced by another provision that comes as near as possible to the economic sense and objective of the ineffective provision. In other respects, all other provisions retain their validity.