General Terms and Conditions

§ 1 General provisions, scope

(1) These General Terms and Conditions (GTC) apply to all business relationships between Centroplan GmbH, Robert-Koch-Straße 4, 52499 Baesweiler, Germany, and its customers (hereinafter: „Buyer“). The GTC apply only if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

(2) The GTC apply in particular to contracts for the sale and/or delivery of components and for the provision of planning services (hereinafter jointly: „Deliverables“), irrespective of whether we provide the Deliverables ourselves or purchase them. In their respective current version, the GTC also apply as a framework agreement to future contracts with the same Buyer without our having to refer to them again in each individual case.

(3) Our GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall become part of the contract only if and to the extent that we have expressly consented to their application. This consent requirement applies in every case, for example also where we carry out the delivery to the Buyer without reservation in full knowledge of the Buyer's terms and conditions. Should this clause result in a lack of agreement that prevents conclusion of the contract, the contract shall be concluded excluding all clauses subject to the review of general terms and conditions.

(4) Individual agreements made with the Buyer in a particular case (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements.

(5) Legally relevant declarations and notifications to be submitted to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notices of defects, declarations of withdrawal or reduction) must be made in writing to be effective.

(6) References to the applicability of statutory provisions are for clarification only. The statutory provisions therefore apply even without such clarification, unless they are directly amended or expressly excluded in these GTC.

§ 2 Offer and conclusion of contract

(1) Our offers are subject to change and non-binding. This also applies where we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve title and copyright.

(2) The Buyer's order for the Deliverables constitutes a binding offer of contract. Unless the order states otherwise, we are entitled to accept this offer of contract within four weeks of its receipt by us.

(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by handing over the Deliverables to the Buyer.

(4) All illustrations and information in our catalogues and brochures are to be regarded as approximate only. We reserve the right to make immaterial changes and deviations, in particular those that do not impair usability, without prior notice, as well as to use other materials. In the event of errors in catalogues, price lists, brochures, offers, order slips, invoices and other declarations, we are entitled to make corrections and, where applicable, subsequent charges and/or credits without prior notification.

§ 3 Delivery period and delay in delivery

(1) The delivery period is agreed individually or stated by us upon acceptance of the order. Where this is not the case, we deliver as soon as possible. Information on delivery and performance dates is non-binding unless we have designated it as binding in writing.

(2) We are entitled to make partial deliveries.

(3) The delivery period stated by us commences once all technical questions have been clarified and the Buyer has fulfilled its obligations in good time and properly.

(4) If we are unable to meet binding delivery periods for reasons for which we are not responsible (non-availability of the Deliverables), we will inform the Buyer of this without delay and at the same time notify the expected new delivery period. If the Deliverables are also unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will refund without delay any consideration already provided by the Buyer. Non-availability of the Deliverables in this sense includes in particular our supplier's failure to deliver to us in good time. Our statutory rights of withdrawal and termination as well as the statutory provisions on the handling of the contract where the obligation to perform is excluded (e.g. impossibility or unreasonableness of performance and/or subsequent performance) remain unaffected. The Buyer's rights of withdrawal and termination under § 8 of these GTC likewise remain unaffected.

(5) Whether we are in default of delivery is determined by the statutory provisions. In every case, however, a reminder from the Buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the loss caused by the delay. The lump sum amounts to 0.5% of the net price (order value) for each completed calendar week of delay, but no more than 5% in total of the order value of the Deliverables handed over late. We reserve the right to prove that the Buyer suffered no loss at all or only a substantially lower loss than the above lump sum.

(6) Where reference is made to Incoterms and their application is agreed, the Incoterms 2010 version shall apply.

§ 4 Delivery, transfer of risk, acceptance, default of acceptance

(1) Components are delivered ex warehouse, which is also the place of performance. At the Buyer's request and expense, the components will be shipped to another destination (sale by dispatch). Unless agreed otherwise, we are entitled to determine the type of shipment ourselves (in particular carrier, shipping route, packaging).

(2) The risk of accidental loss and accidental deterioration of the components passes to the Buyer no later than upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the components as well as the risk of delay passes upon delivery to the forwarder, the carrier or the person or institution otherwise designated to carry out the shipment. Where planning services are agreed, acceptance is decisive for the transfer of risk. In all other respects, the statutory provisions of contract-for-work law apply accordingly to an agreed acceptance. Handover or acceptance is deemed to have occurred if the Buyer is in default of acceptance. The Buyer must inspect the Deliverables handed over without delay.

(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting loss, including additional expenditure (e.g. storage costs). For this we charge lump-sum compensation of 5% of the order value for each week commenced, beginning with the delivery period or – in the absence of a delivery period – with notification that the Deliverables are ready for dispatch or acceptance. Proof of a higher loss and our statutory claims (in particular compensation for additional expenditure, reasonable compensation, termination) remain unaffected; the lump sum is, however, to be set off against further monetary claims. The Buyer is permitted to prove that we suffered no loss at all or only a substantially lower loss than the above lump sum.

§ 5 Prices and terms of payment

(1) Unless otherwise agreed in the individual case, our prices current at the time the contract is concluded apply, for components ex warehouse, plus statutory value added tax.

(2) In the case of sale by dispatch (§ 4 para. 1), the Buyer bears the transport costs ex warehouse and the cost of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges are borne by the Buyer. We do not take back transport packaging or any other packaging within the meaning of the German Packaging Ordinance; it becomes the property of the Buyer; pallets are excepted.

(3) The minimum order value is EUR 2,000.00 (excluding VAT). For orders below the minimum value, pro rata processing costs of EUR 200.00 (excluding VAT) may be invoiced. For orders with a value of EUR 200.00 (excluding VAT), a small-quantity surcharge of EUR 19.95 (excluding VAT) is charged.

(4) If the agreed delivery time exceeds two months from conclusion of the contract, or if delivery is delayed beyond two months from conclusion of the contract for reasons not attributable to our fault, we are entitled to charge the price valid on the day of delivery.

(5) The purchase price is payable in advance unless otherwise agreed in the individual case.

(6) Upon expiry of the above payment period, the Buyer is in default. During the default, interest is charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further loss caused by the default. Agreed deadlines are extended by the period of default and by the period during which we are prevented from delivering or performing by circumstances for which we are not responsible, plus a reasonable start-up period after the impediment ends.

(7) The Buyer is entitled to rights of set-off or retention only to the extent that its claim has been established with legal effect or is undisputed; claims arising from the same contract are excepted. In the case of defects in the Deliverables, § 7 para. 6 remains unaffected.

(8) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardised by the Buyer's lack of ability to pay (e.g. by an application to open insolvency proceedings), we are entitled under the statutory provisions to refuse performance and – where applicable after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made items), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

§ 6 Retention of title

(1) We retain title to the Deliverables sold until all our present and future claims arising from the contract and from an ongoing business relationship (secured claims) have been paid in full.

(2) Deliverables subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The Buyer must notify us in writing without delay if and to the extent that third parties gain access to goods belonging to us.

(3) If the Buyer acts in breach of contract, in particular by failing to pay the purchase price due, we are entitled under the statutory provisions to withdraw from the contract and/or to demand the return of the Deliverables on the basis of the retention of title. The demand for return does not at the same time constitute a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods and to reserve the right of withdrawal. If the Buyer fails to pay the purchase price due, we may assert these rights only if we have previously set the Buyer a reasonable deadline for payment without success, or if such a deadline is dispensable under the statutory provisions.

(4) The Buyer is entitled to resell and/or process the Deliverables subject to retention of title in the ordinary course of business. In that case, the following provisions apply in addition.

(5) The retention of title extends to the products resulting from processing, mixing or combining our Deliverables, at their full value, whereby we are deemed to be the manufacturer. If, in the case of processing, mixing or combining with deliverables of third parties, their title is retained, we acquire co-ownership in proportion to the invoice values of the processed, mixed or combined deliverables. In all other respects, the same applies to the resulting product as to the Deliverables supplied subject to retention of title.

(6) The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the Deliverables or the product, in full or in the amount of any co-ownership share of ours in accordance with the preceding paragraph. We accept the assignment. The Buyer's obligations set out in para. 2 also apply in respect of the assigned claims.

(7) The Buyer remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the Buyer meets its payment obligations towards us, is not in default of payment, no application has been made to open insolvency proceedings and there is no other deficiency in its ability to pay. Should this be the case, however, we may demand that the Buyer disclose to us the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third parties) of the assignment.

(8) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Buyer's request.

§ 7 Buyer's claims for defects

(1) The statutory provisions apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper installation or defective installation instructions), unless otherwise stipulated below.

(2) The basis of our liability for defects is above all the agreement reached on the quality of the Deliverables. All product descriptions that are the subject of the individual contract are deemed to be an agreement on the quality of the Deliverables; it makes no difference whether the product description originates from the Buyer, from the manufacturer or from us.

(3) Where the quality has not been agreed, whether or not a defect exists is to be assessed in accordance with the statutory rules. We accept no liability, however, for public statements made by the manufacturer or other third parties (e.g. advertising claims).

(4) The Buyer's claims for defects presuppose that it has complied with its obligations to inspect and give notice of defects. If a defect becomes apparent during the inspection or later, we must be notified in writing without delay. Notice is deemed to be without delay if it is given within two weeks; timely dispatch of the notice suffices to meet the deadline. Irrespective of this obligation to inspect and give notice, the Buyer must give written notice of obvious defects (including incorrect and short delivery) within two weeks of delivery; here too, timely dispatch of the notice suffices to meet the deadline. If the Buyer fails to carry out a proper inspection and/or give proper notice of defects, our liability for the defect not notified is excluded.

(5) If the Deliverables handed over are defective, we may first choose whether to provide subsequent performance by remedying the defect (rectification) or by supplying an item free of defects (replacement delivery). Our right to refuse the chosen form of subsequent performance under the statutory conditions remains unaffected.

(6) We are entitled to make the subsequent performance owed conditional upon the Buyer paying the purchase price due. The Buyer is, however, entitled to retain a portion of the purchase price appropriate to the defect.

(7) The Buyer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the Deliverables complained about for inspection purposes. In the case of a replacement delivery, the Buyer must return the defective Deliverables to us in accordance with the statutory provisions.

(8) We bear the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, if a defect actually exists. If, however, a request by the Buyer to remedy a defect proves to be unjustified, we may demand reimbursement from the Buyer of the costs incurred as a result.

(9) In urgent cases, e.g. where operational safety is at risk or to prevent disproportionate damage, the Buyer has the right to remedy the defect itself and to demand from us reimbursement of the expenditure objectively required for this. We must be notified of any such self-remedy without delay, if possible in advance. The right of self-remedy does not exist where we would be entitled to refuse corresponding subsequent performance under the statutory provisions.

(10) If subsequent performance has failed, or if a reasonable deadline to be set by the Buyer for subsequent performance has expired without success or is dispensable under the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.

(11) Claims of the Buyer for damages or reimbursement of futile expenditure exist only in accordance with § 8 and are otherwise excluded.

§ 8 Other liability

(1) Unless otherwise stated in these GTC including the following provisions, we are liable for breaches of contractual and non-contractual obligations in accordance with the applicable statutory provisions.

(2) We are liable for damages – on whatever legal grounds – in cases of intent and gross negligence. In cases of simple negligence we are liable only

a) for damage resulting from injury to life, body or health,

b) for damage resulting from the breach of a material contractual obligation (an obligation whose fulfilment is essential to the proper performance of the contract and on whose observance the contracting party regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable damage typically occurring.

(3) The limitations of liability arising from para. 2 do not apply where we have fraudulently concealed a defect or have given a guarantee for the quality of the Deliverables. The same applies to claims of the Buyer under the German Product Liability Act.

(4) In the case of a breach of duty that does not consist of a defect, the Buyer may withdraw or terminate only if we are responsible for the breach of duty. Any right of the Buyer to terminate at will (in particular under Sections 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

§ 9 Limitation period

(1) By way of derogation from Section 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. Where acceptance has been agreed, the limitation period begins upon acceptance and is two years.

(2) The above limitation periods also apply to contractual and non-contractual claims for damages by the Buyer that are based on a defect in the Deliverables, unless applying the standard statutory limitation period (Sections 195, 199 BGB) would result in a shorter limitation period in the individual case. The limitation periods of the German Product Liability Act remain unaffected in every case. Otherwise, the statutory limitation periods apply exclusively to claims for damages by the Buyer under § 8.

§ 10 Assignment of warranty claims against manufacturers

Where warranty claims against the manufacturer have a term longer than one year, these claims are assigned to the Buyer. The Buyer accepts these assignments. No claims may be asserted against the Seller on this basis.

§ 11 Choice of law and place of jurisdiction

(1) These GTC and all legal relationships between us and the Buyer are governed by the law of the Federal Republic of Germany, excluding all international and supranational (treaty) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. The requirements and effects of the retention of title under § 6, by contrast, are governed by the law of the respective storage location of the components, to the extent that the choice of law made in favour of German law is inadmissible or ineffective under that law.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Aachen. We are, however, also entitled to bring an action at the Buyer's general place of jurisdiction.

§ 12 Final provisions

(1) These GTC render all our earlier terms and conditions invalid.

(2) Amendments and additions to these General Terms and Conditions must be made in writing. This also applies to any amendment or addition to this written form clause. The required written form may also be satisfied by transmission by fax or electronic media.

(3) Should individual provisions of the contract with the customer, including these GTC, be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected. The wholly or partly invalid provision shall be replaced by a provision whose economic effect comes as close as possible to that of the invalid provision.