General Terms and Conditions of Delivery and Payment

Hans Sasserath GmbH & Co. KG
Mühlenstrasse 62
41352 Korschenbroich, Germany

1. General Provisions

1. We transact all business exclusively according to our General Terms and Conditions of Delivery and Payment as set out below. Any terms of the customer providing for otherwise shall not apply. Our General Terms and Conditions of Delivery and Payment shall also apply in the event that we effect delivery without objection, regardless of having knowledge of conflicting or deviating terms of the customer.



2. All agreements made with the customer for the purpose of performing a contract shall be set out in the contract in writing. This shall also apply in particular to oral side agreements made before concluding the contract.



3. These General Terms and Conditions of Delivery and Payment shall also apply to future similar transactions with the same customer without a specific agreement having to be concluded to this end.

2. Offer and Conclusion of Contract

1. Our offers and quotations are without obligation, unless expressly stated otherwise. Cost estimates are non-binding.



2. A contract pertaining to a delivery order shall not be deemed to have come about unless it has been confirmed by us in writing. Any amendments, addenda or ancillary agreements — including this requirement of the written form — shall also be subject to written confirmation by us.



3. All rights, particularly with regard to copyright and ownership, to illustrations, drawings, brochures, catalogues, patterns, samples, models and other similar materials included by us with quotations shall remain with us. These materials may not be made available to third parties without our prior express written consent. They shall be returned to us immediately if a contract or order does not come about.



4. For products manufactured under license as well as for products that we do not manufacture ourselves, the enclosed license conditions shall additionally apply.



5. Our quotations are subject to the proviso that all requisite permits (e.g. export licenses) are granted.

3. Prices and Payment

1. Unless otherwise expressly agreed in writing, the prices applied by us are those that are in effect on the day of delivery.



2. Our prices are quoted net, “ex works”, in euros, plus legally applicable value-added tax, excluding packing.



3. Payment shall be effected by bank, giro or post office bank transfer. Where a transfer is made, payment shall not be deemed to have been received until the amount is credited to our account. We shall not be obligated to accept bills of exchange or checks. In the event that we do accept them, then only for the purpose of payment. Payment shall not be deemed to have been received until these instruments have been redeemed. Any applicable bank, discounting and collection charges shall be assumed by the customer and shall be payable immediately. Where bills of exchange are accepted, no liability will be assumed for proper presentation and protest.



4. Unless explicitly agreed otherwise in writing, the purchase price shall be payable within 10 (ten) days of the invoice date, for which a cash discount of 3% may be taken, otherwise net, in full, within 30 (thirty) days of the invoice date, without any cash discounts or deductions being taken.



5. Where the customer falls into arrears with payment, we shall be entitled to charge default interest at the statutory rate of interest applicable to payment arrears. Where we are able to show evidence of higher loss from arrears, we may also assert these amounts as well. However, the customer shall have the right to show that a lesser loss has been incurred as the result of the payment arrears.



6. The customer may offset amounts due if and only if the respective counterclaims have become res judicata (unappealable) or are undisputed or recognized by us. The customer shall also not be entitled to withhold payment due to disputed counterclaims unless the customer is not a registered trader, a legal entity under public law, or a special fund under public law. In these cases the customer may exercise their right to withhold payment provided that the customer’s counterclaim is based on the same contract.

4. Delivery, Shipment, Passage of Risk

1. Our prices are quoted ex works, exclusive of packing. For orders with a net merchandise value of over EUR 770.00, delivery will be effected free of charge, including packing, to the designated receiving terminal or franco domicile at our discretion. Other de minimis thresholds shall apply outside of Germany.



2. An agreed-upon delivery date shall not be binding unless rendered in writing; this shall be subject to correct and timely delivery by our suppliers.



3. The commencement of and adherence to agreed delivery periods shall be subject to the customer complying with their obligations to cooperate, including, but not limited to, the timely receipt of all items, documentation, permits, releases, clearances and examinations to be provided by the customer, compliance with the agreed payment terms, including agreed advance payments. Agreed delivery dates will be postponed by a suitable period where these obligations are not satisfied by the customer in a proper and timely manner.



4. Where the customer delays acceptance or fails to perform other obligations to cooperate incumbent upon them, we may, at our option, claim compensation for any related damage or loss sustained by us, including but not necessarily limited to, reimbursement for additional expenses incurred by us, if any. This shall be without prejudice to our exercising further rights and asserting further claims.



5. Unforeseen operational disruptions and those not attributable to us that occur or become known upon concluding the contract, including strikes, lock-outs or other concerted acts of workmen; war; insurrections; shortage of raw materials; machinery breakdowns and essential components becoming defective; acts on the part of government authorities; or any other causes, circumstances or contingencies beyond our control, despite exercising the utmost care, shall cause delivery times to be extended for the duration of the existence of these impediments, in addition to an appropriate lead time. We will go to every effort to inform the customer of the beginning and end of the delivery delay and how long it is expected to last.



6. Where the delay in delivery is attributable to us, the customer shall grant us a reasonable grace period for fulfilling the terms of the contract. Where delivery is delayed and this delay causes damage or loss to be incurred by the customer, the customer shall be entitled to demand liquidated damages for delayed completion, in full satisfaction of our liability for said failure. Said liquidated damages shall amount to 1% of the contract value for each full week of delay, but not more than a total maximum of 5% of the portion of all merchandise to be supplied that could not be utilized in a timely manner or could not be utilized as provided for under the contract as a result of the delay. Any compensation for damage or loss in excess of this on account of delay shall be precluded.



7. Where we are already late with delivery and the customer grants us a reasonable grace period subject to the threat of refusal to accept delivery, then, to the extent that we are responsible for letting this grace period lapse without making delivery, the customer shall be entitled to withdraw from the contract.



8. All deliveries are effected ex warehouse. Where shipment of the merchandise has been agreed, the customer shall assume the shipping costs. If the customer so requests, we will have the merchandise insured during transport, in which case the customer shall assume these costs. Unless specifically instructed by the customer, we will determine the type of dispatch and packing at our equitable discretion. We will assume no liability unless we, our legal representatives, our authorized representatives and executive staff, and vicarious agents are guilty of willful intent or gross negligence.



9. Risk shall pass to the customer as soon as the consignment has left our warehouse or has been delivered into the custody of the persons effecting transport, the latter being the case irrespective of who assumes the freight costs. Where the merchandise is ready for dispatch and dispatch is delayed for reasons beyond our control, risk shall pass to the customer upon receipt of notification of readiness for dispatch. The foregoing passage of risk provisions shall also apply where shipment is effected within the same location. They shall also apply where shipment is carried out by our vehicles or by our personnel.



10. In the case of call-off orders (orders for delivery on demand), the customer shall accept the merchandise ordered within 12 (twelve) months of receiving our written confirmation of order at the latest, unless expressly agreed otherwise in writing.



11. We shall be entitled to make partial deliveries or make partial performance of services.

5. Warranty / Liability for Defects

1. Claims for defects asserted by the customer are predicated on the customer inspecting the items supplied for defects without undue delay, however within one week of accepting the consignment at the latest; where a defect is detected, the customer shall notify us immediately in writing. Defects that cannot be detected directly upon careful examination within this period shall be notified to us in writing without undue delay upon being detected. The customer shall make written notification of defects in a cogent, verifiable and detailed manner, providing all the pertinent information required for recognizing and analyzing the defects. Where upon review it is shown that the customer wrongly filed a complaint for defective merchandise, we may demand that the customer compensate us on a time-spent basis for the time and effort invested by us on account of the complaint. The customer shall be obligated to return to us incidental hardware and components whose replacement is suitable for remedying a defect where, upon consulting with us, the customer is shown to be in a position to remove and replace these items.



2. Where a purchased item is shown to be defective, the customer shall, at their option, be entitled to subsequent performance in the form of remedial action or to the supply of a new, faultless replacement. Where the customer opts for remedial action we shall be obligated to assume all the necessary expenses for the purpose of performing the remedial action, including costs for transport, infrastructure, labor and materials, insofar as these expenses are not increased due to the purchased item having been moved to a location other than the place of performance.



3. In the event that remedial action is unsuccessful, the customer may, at their option, rescind the contract or request a reduction in price.



4. Warranty / liability for defects shall not include remedying flaws that arise as the result of normal wear and tear, external factors, operating errors or improper use. The same shall also apply where the customer (or a third party commissioned by the customer) makes modifications to the item supplied, unless the material defect is not causally related to the modification.



5. Claims based on defect in respect of quality or title shall become time-barred upon the lapse of 12 (twelve) months from the passage of risk.



6. The provisions contained in this section (section 5) shall conclusively govern the warranty / liability for defects in respect of the merchandise supplied by us. Claims of the customer extending beyond this, including, but not limited to, damage not exhibited by the merchandise itself, shall be governed exclusively in accordance with section 7 (“Disclaimer of Liability”) below.

6. Reservation of Title

1. The purchased items shall remain our property until all our claims against the customer under the contract have been satisfied in full (“Reserved Merchandise”). The customer shall not be authorized to transfer title of the reserved merchandise as collateral security or to pledge it in favor of third parties without our consent; the customer shall be obligated to notify us without undue delay in the event of any lien placed on the reserved merchandise or where it is subjected to levy of execution by third parties. Where the customer breaches the contract, i.e. in the event that the customer falls into arrears with payment, we shall be entitled to take back the items supplied by us for safekeeping or request that they be surrendered to a sequestrator, without this constituting rescission of the contract. In such an event we shall also be entitled to demand that the merchandise be surrendered for the purpose of disposal through sale; sale of the merchandise shall be deemed to constitute rescission of the contract. Sale shall be effected in the best possible manner. We shall apply the sale proceeds — less reasonable sales costs — to the amounts outstanding owed by the customer.



2. Notwithstanding our reservation of title, the customer shall be entitled to sell or further process the reserved merchandise in the course of the customer’s ordinary conduct of business. The entitlement of the customer to sell the reserved merchandise in the ordinary conduct of business shall terminate in the event that the customer should breach the contract, i.e. fall into arrears with payment.



3. The customer hereby assigns to us already at this time any amounts received from the resale of the reserved merchandise in the amount of the value of the reserved merchandise for the purpose of securing all claims arising from the business relationship with the customer. The customer’s entitlement to sell the reserved merchandise shall be dependent on the assignment to us of the amounts outstanding arising from said business relationship. Pledging these amounts outstanding in favor of third parties or any assignment of these claims to third parties shall be subject to our consent. The customer shall be obligated to notify us without undue delay of any attachment of these amounts outstanding. We will not collect the assigned amounts outstanding as long as the customer complies with their payment obligations. However, the customer shall be obligated, upon request, to inform us of the third-party debtor and to notify the third-party debtor of the assignment. The customer shall also assign to us those amounts that accrue to them from third parties as a result of the combination or attachment of the merchandise with real property.



4. The processing or conversion of the reserved merchandise by the customer shall always be on our behalf; in the event the merchandise is processed or commingled with other items that are not our property, we shall acquire co-ownership of the new item in proportion to the value of the merchandise compared to that of the other processed items at the time of the processing. The same reservation of title that applies to the merchandise shall also apply to the item that results from processing. Where the reserved merchandise is inextricably combined, processed or mixed with items that are not our property, we shall acquire co-ownership of the new item in proportion to the value of the reserved merchandise supplied by us compared to that of the other combined or mixed items at the time they are combined or mixed. In the event the combination or inextricable mixture is such that the customer’s property is to be viewed as the primary product, it is agreed and understood that the customer shall assign proportional co-ownership rights in the product to us. The customer shall then hold the resultant sole or co-ownership for us. Unless provided for otherwise in the foregoing two paragraphs, the provisions of section 946 et seq. of the German Civil Code (BGB) shall apply.



5. Where the value of the collateral security given exceeds our claims or amounts outstanding by more than 10%, we shall be obligated, upon request by the customer or upon request by a third party injured by our excess collateral (overcollateralization), to release collateral security items, the decision as to which collateral security items should be released being at our discretion.

7. Disclaimer of Liability

1. We shall be liable as prescribed by law to the extent that the customer asserts claims for damages based on willful intent or gross negligence, including willful intent or gross negligence on the part of our representatives or agents. In cases other than intentional breach of the contract, our liability for damages shall be limited to claims for typical, foreseeable damage or loss.



2. We shall be liable as provided for by law in the event we commit a material breach of the contract. In these cases as well, our liability for damages shall be limited to claims for typical, foreseeable damage or loss.



3. This shall be without prejudice to our liability based on culpable injury to life, limb or health; this shall also apply to compulsory liability under the German Product Liability Act (ProdHaftG).



4. Any and all other liability shall be excluded unless specified otherwise above.



5. The foregoing limitations of liability shall also apply in the event of claims for damages filed by the customer against our legal representatives or agents.

8. Non-assignability

1. The customer may not assign rights from contracts concluded with us to third parties without our consent.

9. Third-party Ownership and Intellectual Property Rights

1. Where we manufacture items according to specifications contained in the customer’s illustrations, drawings, brochures, patterns, samples, models and other similar materials, all rights pertaining to ownership and copyright shall remain with us even where the customer is obligated to assume a portion of the costs or no contract ultimately comes about.



2. In the cases as provided for in clause 9. a) above, the customer warrants that the representations made by them do not infringe any rights of third parties. In the event that a third party asserts a claim against us on account of this, the customer shall indemnify and hold us harmless against any such claims upon first written request. However, we will not enter into any agreements with such third parties without the customer’s consent, including negotiating a settlement. This obligation to provide indemnity shall extend to all expenses incurred by us of necessity from or in connection with the claim raised by the third party.

10. Applicable Law, Contract Language

1. All legal relations between the customer and us shall be governed by and construed exclusively in accordance with the laws of the Federal Republic of Germany.



2. Where contracts are drafted in multiple languages, only the German version shall constitute the binding, authoritative version.

11. Place of Performance and Venue

1. The place of performance shall be Korschenbroich, Germany, unless provided for otherwise.



2. Where the customer is a registered trader, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be Neuss, Germany; however, we shall also be entitled to being legal action against the customer at their domicile.