General Terms and Conditions of Business (GTC) 

1. General

The Seller's goods and services shall be rendered under the following terms and conditions only, even if no express reference is made to them. The conditions of purchase of the Buyer shall not be recognized. If this GTC does not contain an arrangement, the statutory regulations shall apply. If individual terms and conditions of this GTC are or become invalid, the validity of the remaining terms and conditions shall not be affected. Offers made by the Seller shall be subject to change without notice. Agreements, supplements, amendments, and side agreements shall only become binding with the written confirmation of the Seller.

2. Delivery, passing of risk

Delivery times given shall not be binding. A statement of a delivery date does not constitute recognition that past deliveries were in default, nor does it constitute a statement of a guarantee for the future. The delivery period shall begin with the dispatch of the order, but not however before all details have been clarified and the Buyer has provided all the necessary documents. The delivery period shall be adhered to if the goods are ready for dispatch and in the event of force majeure, shall be extended by the duration of the hindrance and an appropriate start-up time. Force majeure shall amount to unforeseeable occurrences which make it unreasonably difficult or impossible for the Seller to deliver his goods/services, such as industrial disputes, official measures, disruptions in production, delays in the supply of important fuels or primary materials, as well as delays in the supply of manufactured and semi-manufactured products, transport difficulties, and accidents, even if the events occur at the sub-supplier or during a delay which has already occurred. There shall be no right to a claim for compensation if the delivery period is extended. If the Seller himself is not supplied with the correct goods or is not supplied on time, he shall be exempted from his duty to supply and shall not need to pay any compensation for damages either.

Delivery shall be ex-works excluding any liability on the part of the Seller. The goods can be insured at the written request and expense of the Buyer. The risk of loss and destruction, deterioration and the dispatch of the goods shall pass over to the Buyer on the day on which the goods are ready for dispatch, even if delivery is franco domicile and even if the Seller exercises his right of retention. In the event of delay in taking delivery of the goods, the Seller can put the goods into store at the cost and risk of the Buyer while maintaining his right to fulfilment, and classify and invoice call off orders himself. Part consignments as well as excess and short consignments of up to 10% are permissible and shall be paid by the Buyer. If it is not possible for the Seller to deliver a consignment, he may withdraw from the part of the contract not yet fulfilled, without it being possible for a claim to be made for non-fulfilment and consequential damage.

A delay in the delivery date by the Buyer will require the express consent of the Seller. Price increases and additional costs are to be borne by the Buyer. If the Buyer cancels an order or individual items of an order, he shall carry all the costs incurred and a handling fee amounting to 10% of the net value of the goods. The return of delivered goods shall require the preceding consent of the Seller and will only be possible in exceptional cases. Damaged parts, special productions and articles not belonging to the Sellers normal range of goods will generally not be taken back. For taking back goods, the AN shall invoice a handling fee of 20% of the net value of the goods. The goods shall be returned at the cost and risk of the Buyer.

3. Liability for defects in delivered goods

The information, diagrams, illustrations, dimensions, performance descriptions etc. in publications, advertising literature, catalogues, price lists, instructions for use, offers, and other documents are subject to change without notice and are non-binding approximate values and shall not constitute any assurances of characteristics or the acceptance of specific liabilities. The Buyer shall be obliged to check the goods before they are used that they are specially suited for their intended purpose, product reliability, and its compliance with all relevant technical, legal or other official regulations. The Seller shall not be liable for damage which is avoidable with this sort of proper testing.

Those parts of the goods which, as a result of a circumstance prior to the passing of risk, turn out to be considerably impaired in their function within 12 months of fulfilment, or 6 months of fulfilment if there is a multi-shift operation, are to be repaired free of charge or replaced with new parts at the equitable discretion of the Seller. If the repair or replacement fails the Buyer can demand a price reduction or cancellation of the contract. Further warranty claims, especially the replacement of costs of third parties, are excluded. Instead to carry out a repair or a replacement the Seller can demand a price reduction or cancellation of the contract. The warranty shall only apply for defects occurring under normal operating conditions and proper use. The Buyer shall have to prove that this is the case and that the goods have not been used improperly, incorrectly assembled and/or started up, subjected to excessive loads, unsuitable working materials, replacement materials, additional components, faulty further processing, chemical, electro-chemical, electrical as well as corrosive factors. There are no guarantees given for the durability of materials, especially for parts subject to wear and tear. If products from other companies are used, the liability of the Seller shall be restricted to assigning his liability claims against the supplier of the products from other companies.

The goods must be inspected immediately after they have been received. Notification of defects is to be given in writing no later than 10 days from receipt of the goods. Defects which cannot be identified within this period, even if the goods are checked carefully, are to be notified in writing immediately upon discovery and any possible production is to be stopped immediately. These periods of time shall also apply for part deliveries. The parts complained about are to be made available for inspection immediately, since otherwise the warranty claims shall lapse. Parts which are replaced shall become the property of the Seller. The right of the Buyer to assert warranty claims shall in all cases become time-barred from 12 months following the point in time of the complaint made on time, no earlier however than with the expiry of the warranty period.

The prior written consent of the Seller shall be required for the return of goods which have been complained about. The goods shall be returned at the risk and expense of the Buyer and are to be delivered to the Seller free of charge, even if in the event that the complaint is justified, the Seller is to bear the costs of repair or in the event of a replacement, the labour, material and transport costs. The warranty obligation shall lapse if the goods are processed by the Buyer or have been sold or if the Buyer modifies or mends the goods himself or has them modified. The Seller is not obliged to rectify the defects himself, as long as the Buyer does not fulfil his obligations. The Seller shall not be liable for the success of developments for development orders.

4. Prices, terms of payment

Prices are subject to change without notice, and are quoted in Euro (EUR, €) ex works excluding packaging, transport, insurance, and are based on the current costs of manufacture. Subsequent reductions in volumes ordered or quantities for agreed partial deliveries as well as the reduction of agreed call-offs by the Buyer shall cause the unit prices, any fitting costs there may be and start-up costs to be increased. The Seller shall reserve the right to calculate those prices for a consignment which have increased in price as a result of cost increases for materials, raw materials and supplies, goods bought for resale, wages, exchange rates, interest charges or other factors increasing prices, or which should turn out to be necessary for costing purposes. The prices for subsequent orders are not binding. All prices, costs, fees, and interest are exclusive the rate of value-added tax in force as applicable (MWST).

Payments, including dispatch and additional costs, are payable in full upon presentation of invoice. The Buyer shall be granted the following discounts for rapid payment of his invoices, 2% within 10 days of invoice date, or net cash within 30 days. A payment shall only be regarded as having been received when the sum is at the disposal of the Seller. In the event that payment is not made within the period allowed for payment, the Seller shall be entitled to invoice default interest at 8 % above the base rate charged at that time by the European Central Bank. Payments shall always be counted against the oldest invoices first, and are to be free of costs. Bills of exchange shall only be accepted if they have been agreed in writing.

The Seller can demand payment in advance. If there is a suspicion that a claim to a payment is at risk, the seller can demand payment in advance or security, even after the contract has been signed, and he may refuse to render fufilment until his demands have been fulfilled. If the Buyer refuses, or if the period of time ( for payment or the furnishing of a security) expires without success, the Seller shall be entiled to withdraw from the contract or to demand compensation for damages for nonfulfilment. Offsetting with counter claims and retention of payment sums due is not allowed.

5. Retention of title

The delivered goods shall be continue to be the property of the Seller until all his claims have been paid in full, including his future claims. On a current account the property subject to retention of title shall serve as security for the balance of the claim by the Seller. If the Buyer deals with the administration for the goods subject to the retention of title, and processes such goods in terms of production, or combines them with other objects, the Buyer shall assign his rights to ownership and/or co-ownership in the new objects to the Seller here and now and the Buyer shall keep them in safe custody for the Seller with commercial prudence.

The Buyer may only sell the goods subject to retention of title in a normal commercial transaction and as long as he is not in default with his payments. The Seller can revoke his authorization to the Buyer to sell and deal with the administration for the goods as long as the sale or the administrative handling of the goods does not take place in the course of the Buyer's normal commercial transactions. The Buyer is not allowed to pledge and transfer ownership of the goods by way of security. The Buyer must notify the Seller immediately in writing of a levy of execution or any other impairment of the rights of the Seller by third parties.

If the Buyer sells the goods subject to the retention of title, he shall consequently assign to the Seller here and now all claims from this sale against his buyer with all additional rights until all the claims of the Seller have been repaid in full, even if the objects have been processed or sold with other performances. At the demand of the Seller, the Buyer has to name the debtor of the assigned claims as well as the type and amount of the claims. If the value of the securities given to the Seller exceeds his claims by more than 20%, the Buyer can consequently demand that the excess over and above this amount is re-assigned to him. The Buyer is obliged to give the Seller the information and documents the Seller requires to assert his claims against the Buyer.

6. Industrial property rights

The Seller shall reserve the title and all industrial property rights and copyrights to the moulds, samples, illustrations, technical documents, catalogues, leaflets, drawings, cost estimates, offers. The documents must not be reproduced, third parties must not be allowed access to them, and they must not be sold by other means, without the written consent of the Seller. Breaches against these conditions shall carry the obligation of having to pay compensation for damages.

The Buyer must not manufacture the subject matter of the contract himself, or have it produced by others without the written consent of the Seller. The Buyer shall be liable for products manufactured in accordance with information supplied by the Buyer, if the industrial property rights and other rights of third parties are breached by such manufacture and delivery by the Buyer. The Buyer shall be obliged to exempt the Seller from all third party claims which could arise from such a breach. Moulds manufactured or provided by the Seller, tools or other devices shall remain the property of the Seller, even if the Buyer has accepted to pay the costs for them. The Buyer shall be obliged to keep secret from third parties all knowledge not in the public domain which he has acquired from the business relationship with the Seller.

7. Liability

Provided that no other provisions have been made in these terms and conditions with regard to liability, the Seller shall only be liable if he is guilty of intent or gross negligence. The Seller shall only be liable for direct damage and not for consequential damage. The amount of the Seller's liability shall be limited to 20% of the value of the contract. Claims not expressly acknowledged in these terms and conditions shall be excluded, provided that this is legal. This shall also apply in so far as claims can be derived from incorrect advice, illegal acts, manufacturer's liability, breach of contract, or indebtedness when the contract is signed.

8. Place of fulfilment, place of jurisdiction, law applicable

The place of fulfilment for all the Buyer's duties arising from the contract is the main place of business of Seller. If the Buyer is a registered trader, a legal entity under public law, or a public-law special fund, all disputes arising from the contractual relationship are, providing that this is legal, to be heard at the court responsible for Seller's principal place of business or for Seller's branch delivering the goods. Seller shall also be entitled to take legal action at the court where the Buyer has its principal place of business. If the Buyer is a registered trader, it shall consequently be agreed that summary proceedings for recovering a debt shall be heard at the court responsible for the Seller's principal place of business. Even if agreements are made with a Buyer which is not a German company, they shall be subject only to the law of the Federal Republic of Germany.

LINNEMANN GMBH, 72070 Tübingen, Germany