General Terms and Conditions

General Terms and Conditions

for okugi liftsystems Gmbh, based in Bremen

last updated: May 2009

1. General
1.1 Our deliveries, services and offers shall be effected solely on the basis of these terms and conditions. Terms set forth by the Buyer that are contrary to or deviant from our terms and conditions shall not be recognized unless we have agreed to their validity in writing. Our terms and conditions also apply if we carry out delivery to the Buyer in awareness of contradictory conditions, or of conditions that deviate from our terms and conditions. Our terms and conditions shall apply to all future business relations in their respective current version.

1.2 The Buyer shall not be entitled to assign claims against us.

1.3 Agreements, contractually provided utilizations, assumption of procurement risks, guarantees or other assurances prior to or during the conclusion of contract shall only be deemed valid if they have been entered into in writing.

1.4 This contract is subject to German law. The language for proceedings is German.

1.5 The place of performance for the Buyer’s obligations and of our obligations shall be Bremen, Germany.

1.6 The exclusive place of jurisdiction for all current and future claims resulting from the business relationship shall be Bremen, Germany if the Buyer is a registered merchant, a legal entity under public law or a separate estate under public law, including claims resulting from bills of exchange and cheques. This place of jurisdiction also applies if the Buyer has no domestic general place of jurisdiction, if the Buyer changes residence or fixed address from its previous country, or if its residence or fixed address is unknown at the time of filing a claim.

1.7 If any of the terms in these General Terms and Conditions should be or become invalid, none of the other terms in this document shall be affected. In place of the invalid term, another term shall be provided that is valid and addresses the content and purpose of the invalid term.

2. Offer, scope of delivery and/or service, delivery time, transfer of risk and returns
2.1 Our written order confirmation is binding for the scope of delivery or service provision for offers made by us; in cases where an offer is made by us, that offer shall be binding insofar as it is accepted and no order confirmation is provided.

2.2 Documents such as price estimates, designs, illustrations, dimensions, weights or other technical information are only binding if their validity is expressly agreed upon in writing. For all price estimates, designs, plans and other documents (including those submitted for bids), we retain proprietary rights and copyrights. The above documents may only be made available to third parties with our previous written approval. If the contract in question is not awarded to us, these documents shall be returned to us immediately upon request.

2.3 Changes to production for technical reasons and deviations in dimensions, weights, colours, designs etc. remain reserved insofar as such changes are reasonable for the Buyer, particularly in cases where such changes and/or deviations preserve or improve quality. This applies to supplemental deliveries accordingly.

2.4 Partial deliveries in reasonable amounts are permitted, and may be billed separately as long as the interests of the Buyer are preserved. For batch deliveries or orders, deviations of up to 10% above or below are permitted.

2.5 The delivery term shall begin with the posting of the order confirmation; in cases where an offer is provided by us, the time of such provision is the beginning of the delivery term. However, this period shall not begin before all details of the implementation have been fully clarified. Observance of the delivery term is only applicable if the Buyer fulfils its contractual obligations.
The term is considered to be maintained if the delivery item is sent at the latest on the 15th calendar day after the delivery date, or if readiness for shipment is conveyed.

2.6 The delivery term may be extended according to events in the context of labour disputes and unforeseen impediments to delivery that are outside our control (such as shortages in materials, energy, labour or transport capacity, production interruptions, official decrees, etc.) insofar as such impediments can be proven to have a significant effect on the completion or shipment of the delivery item. This also applies where such conditions apply to sub-suppliers or primary suppliers. We shall also not be held responsible for the stated circumstances if they occur during a pre-existing delay, insofar as such delay is not intentional or caused by gross negligence. We will inform the Buyer of the beginning and ending of such hindrances as quickly as possible.

2.7 In cases of delayed delivery, the Buyer may only withdraw from the contract after the unsuccessful expiry of a reasonable extension to the delivery time that has been stated in writing, insofar as the deadline for delivery is not
dispensable due to legal provisions and no notice has been given that the contract goods were ready for shipment. The same applies in the case of partial delivery or partially impossible delivery. The results of delayed deliveries or deliveries that cannot be completed are determined in Art. 6.

2.8 If the contract goods or delivery items are not collected by the Buyer by the agreed date, delivery may be postponed at the request of the Buyer. If the Buyer does not collect the contract goods or object of service after providing notice of availability including a demand note, then the Buyer shall be charged for costs resulting from storage and financing at a minimum 0.5% of the respective billing amount for every month of delayed collection beginning with the lapse of the stipulated date, notification of readiness for shipment or receipt of the demand note, up to a maximum total of 5%, insofar as the Buyer cannot prove that such costs are lower than stated.
If a reasonable delivery term has been set and has lapsed without result, we reserve the right to use the delivery item for other purposes, and to provide the Buyer with an extended term and a different delivery item. In cases where agreements regarding additional or supplementary orders lead to a delay in delivery, the above conditions apply.

2.9 The risk shall transfer to the Buyer upon collection or dispatch of the delivery item; this shall include cases of freight- free delivery.

2.10 Delivered items shall be accepted by the Buyer even if they have minor defects ifsuch acceptance does not impede the Buyer’s rights as described in Art. 5.

2.11 The Buyer is required, within a reasonable period of time and in writing, to answer our inquiries as to whether they wish to withdraw from the contract due to a delay in delivery, or wish us to continue delivery.

2.12 Returns due to possible late deliveries, complaints or other reasons shall only be accepted if previously agreed upon with us. We shall not accept non-approved returns.

2.13 If shipment is delayed due to circumstances caused by the Buyer,risk is transferred to the Buyer starting on the day that notification of readiness for shipment has been issued; we are, however, required to conclude any insurances that the Buyer requests at the Buyer’s expense.

3. Prices and payment conditions
3.1 If no special agreement exists, prices quoted are ex works or warehouse, not including shipping and packaging. Value-added tax is to be added to the price in the respective legally determined amount.

3.2 If any factors that significantly affect the pricing cause the price to increase in the period between the closure of a contract and the date of delivery, such as salaries and/or energy costs and/or costs for raw materials and/or auxiliary materials or working materials, we reserve the right to adapt the price to the amount that acquisition or production costs have increased. In the case that the price increase exceeds 10% of the originally agreed-upon price, the Buyer shall have the right to withdraw from the contract.

3.3 Additional discounts, rebates or other deductions only apply if all pending or partially unfulfilled contracts between us and the Buyer have been fulfilled at the time of the contract’s conclusion.

3.4 Cheques or bills of exchanges shall only be accepted per agreement and are always on account of payment. Resulting expenses shall always be at the cost of the Buyer and are due immediately.

3.5 Our representatives and other employees are not authorized to accept payments or other dispositions without a written document stating their authority to collect.

3.6 The Buyer is not permitted to withhold payments or offset payment with counterclaims unless such counterclaims are undisputed or legally established.

3.7 The agreed price shall be due upon receipt of the invoice, subject to legitimate and recognised notices of defect. In the case of a legitimate and recognized notice of defect, the Buyer’s payments may be partially withheld in a reasonable proportion to such defects. If the notice of defect is illegitimate and not recognized by us, we reserve the right to demand compensation from the Buyer for the resulting costs.

3.8 In the case of default, we reserve the right to demand legally stipulated interest. We reserve the right to assign claims for further damages due to defaults. In cases of default, all debt claims for other deliveries and services against the Buyer shall become due immediately, regardless of any other agreements regarding due dates or deferment.

4. Retention of title
4.1 We shall retain ownership of all delivery items (goods subject to retention of title) until payment is delivered in full. In addition, we shall maintain ownership until all obligations of the business relationship are fulfilled, including any promissory notes regarding refinancing or reverse bills of exchange for delivered items and any such claims that are owed to us by the Buyer arising from any legal grounds whatsoever at the time of contract conclusion or thereafter. The addition of individual items to an open account as well as balancing the account and the acceptance of the same shall not affect the retention of title.

4.2 In the processing of goods subject to retention of title, we are in compliance with §950 BGB [Bürgerliches Gesetzbuch], and without any obligation. Processed goods are deemed to be subject to goods retention of title as stated in Art. 4.1. If the Buyer processes, combines or mixes the reserved goods with other goods that are not our property, we shall obtain co-ownership of the new goods in proportion to the invoiced price of the goods subject to retention of title to the invoiced price of such other goods. If our property rights in the goods are impaired due to combining, or mixing, the Buyer shall transfer to us his ownership rights for the new item or object immediately, in the scope of the invoicing value of the goods subject to retention of title, and shall store them for us free of charge. Our co-ownership in these goods shall be deemed as goods subject to retention of title as stated in Art. 4.1.

4.3 The Buyer may only resell goods subject to retention of title in the normal course of business in accordance with customary general terms and conditions, provided that the Buyer is not in default, that the Buyer agrees to a retention of title, and that the claims from the resale are transferred to us pursuant to the following Art. 4.4 to 4.6. The Buyer shall not be entitled to any other disposal of goods subject to retention of title.

4.4 The Buyer hereby relinquishes to us its right to the resale of goods subject to retention of title. These shall be used to substitute the goods subject to retention of title as collateral of the equivalent amount in accordance with Art. 4.1. If the Buyer resells goods under retention of our title together with goods from other suppliers at a certain total price, he shall assign to us his receivables from such resale in the same amount as stated in our invoice for goods initially sold with retention of title. In the event of the resale of goods of which we have proportional co-ownership in accordance with Art. 4.2, a share corresponding to our proportional ownership shall be assigned to us. If the goods with retained titles are used by the Buyer to fulfil a contract for work/services, the payment resulting from such a contract shall be assigned to us in advance. We hereby accept such assignments.

4.5 The Buyer is entitled to collect claims arising from the resale. This right shall be void if withdrawn by us. We will only exert of our right of revocation if we become aware of conditions that may result in the Buyer having significantly insufficient funds to settle our payment claims, particularly in cases of payment delay, non-payment of a bill of exchange or cheque, or application to open insolvency proceedings. At our request, the Buyer shall notify its customers immediately of the assignment of rights to us and to give us all documents necessary for collection.

4.6 If the contractual provisions between the third-party debtor and the Buyer contain an effective restriction of the assignment authority, or the third party makes the assignment conditional on its approval, we shall be informed of such circumstances in writing without delay. In such a case, we are hereby irrevocably entitled to collect the claims due to us in the Buyer’s name and on the Buyer’s account. The Buyer also hereby irrevocably assigns the third party debtor payment authorization in our favour.
The Buyer shall immediately inform us of any distraint or other encumbrance from a third party. The Buyer shall bear any costs necessary to suspend such seizure or for return transport of the retained goods, insofar as such costs are not borne by a third party.

4.7 If the realizable value of the collateral securities that have been reserved for us exceeds our secured claims by more than 20%, we shall release securities at our discretion upon request by the Buyer or a third party affected by our excess security. In the event of breach of duty by the Buyer, particularly in the case of default on payment, we are entitled to rescind the agreement in whole or in part and recover the goods following unsuccessful expiry of a reasonable time set by the Buyer – without prejudice to further claims for damages; statutory provisions regarding the dispensability of a fixed deadline shall remain unaffected.
The Buyer shall surrender the goods and to relinquish its right of collection for such goods. For the purpose of re-collecting the retained goods, we are entitled to enter the Buyer’s premises. The same applies if circumstances arise that significantly deteriorate the Buyer’s financial circumstances and endanger collection of our payment claim.

5. Defects of quality and title
5.1 Documents and/or information regarding delivery items and services (such as designs, diagrams, dimensions, weights, utility values and other technical information), regardless of whether expressly agreed upon in writing, are only descriptions and/or identifications and not guarantees, nor do they represent guaranteed qualities or contractually stipulated conditions, and shall be regarded as approximations. Deviations customary to the industry are reserved insofar as they are acceptable to the Buyer, particularly if such deviations preserve or improve the value of the goods. Our drivers or contracted drivers are not authorized to accept notifications of defects. Notifications of defect are excluded after processing, insofar as the defect was detectable in condition of the delivery during inspection.

5.2 With regard to registered merchants, §377 HGB [Handelsgesetzbuch] shall apply. Immediately after receiving or collecting goods, the Buyer shall inspect them exhaustively and immediately notify us in writing if there are any defects detected in the condition of the delivery. Overweight and underweight deliveries within standard commercial limits shall not constitute a valid claim or reduction in price.

5.3 Claims based on material defects, with the exception of consumer purchases, shall become statute-barred after 12 months insofar as such claims refer to newly manufactured goods or services. The foregoing shall not apply if the law imposes longer periods under §438 Para. 1 No. 2 (buildings and materials used for building) §479 Para. 1 (right of recourse) and §634 a Para. 1 No. 2 (construction defects) BGB [Bürgerliches Gesetzbuch]. In the delivery of used goods, all claims regarding material defects are excluded – subject to legal regulations and/or other agreements. The reduced
statute of limitations and the exclusion of liability shall not apply to cases of damages to life, body or health caused intentionally or by gross negligence, to damages based on a premeditated or grossly negligent breach of obligation on our part, or to fraudulent concealment of a defect. The legal provisions regarding expiration, suspension and recommencement of limitation periods shall remain unaffected.

5.4 In the case of material defects, we are first to be given the opportunity to rectify the situation within a reasonable period by either opting to repair the defects or supply an article free of defects. In the case of the latter, the Buyer shall return the defective article upon request in accordance with legal requirements. If we refuse rectification seriously and finally, in accordance with §439 Para. 3 BGB [Bürgerliches Gesetzbuch], we are entitled to refuse rectification. If subsequent rectification fails, if the rectification is unacceptable to the Buyer, or if this case is applicable to §323 Para. 2 BGB [Bürgerliches Gesetzbuch], the Buyer shall be entitled to withdraw from the contract or to reduce counter- performance.

5.5 No claim for defect is constituted in minor deviations from the agreed quality, minor impairments to usability, natural wear and tear, damage to the delivery goods occurring after the transfer of risk owing to defective or negligent handling and/or storage, damage caused by excessive strain, unsuitable building grounds, special external influences that were not foreseen in the terms of the contract, or irreproducible software defects. Claims based on defects attributable to improper modifications or repairs carried out by the Buyer or third parties and the consequences thereof shall likewise be excluded.

5.6 The Buyer shall only be entitled to statutory recourse claims in accordance with §478 BGB [Bürgerliches Gesetzbuch] (recourse by a commercial entity), and such recourse shall be limited to cases where the Buyer has not concluded an agreement with its customers exceeding the scope of statutory provisions. For the extent of the Buyer’s recourse claim against us pursuant to §478 Para. 2 BGB [Bürgerliches Gesetzbuch], the following Art. 5.7 applies accordingly.

5.7 The Buyer shall have no claim with respect to expenses incurred in the course of measures for rectification, particularly costs of travel and transport, labour and material, to the extent that expenses are increased due to the fact that the delivery item was subsequently brought to another location than the Buyer’s premises, unless doing so complies with the intended use of the delivery item.

5.8 Art. 6 shall also apply to claims for damages. Further claims against us or our vicarious agents or claims not specified in this clause that arise from material defects are expressly excluded.

5.9 Claims lodged by the Buyer with regard to partial shipments shall not entitle the Buyer to cancel the remainder of the order unless the Buyer does not wish to receive the partial delivery due to defects.

5.10 We shall accept no liability for defect claims based on regulations outside of the Federal Republic of Germany that exceed the scope of German regulations.

5.11 In the case of deficiencies of title, the terms in Art. 5.1 through 5.10 apply.

6. Claims of the Buyer in cases of delayed delivery, impossibility of performance and other breaches of contractual duty
6.1 All claims for damages on the part of the Buyer due to delayed delivery, impossibility of delivery or other legal grounds, particularly due to breach of contractual duties and unlawful acts, shall be excluded insofar as there are no statements otherwise in Art. 6.2 through 6.7. This applies to claims for damages as well as to claims for reimbursement of expenses lodged by the Buyer.

6.2 The above exclusion of liability does not apply to cases
a) of intent or gross negligence
b) of damages arising from injury to life, body or health that are the responsibility of one of our legal representatives or vicarious agents
c) that are subject to the German Product Liability Act (Produkthaftungsgesetz)
d) that are subject to other legally binding statutes e) due to a breach of substantial contractual obligations on our part

Claims to damages for infringement of substantial contractual obligations shall, however, be limited to the foreseeable damages as typical in commercial contracts, and if there is no instance of malicious intent or gross negligence and no claim is constituted due to intentional or negligent injury to life, body or health. The above provisions shall not constitute a change in the burden of proof to the detriment of the Buyer.
Liability for foreseeable damages of the type standard in commercial contracts, if admissible, shall be limited to a liability restriction of three times the net price of each subject of the contract, the delivery or non-delivery of which constitutes the grounds of the Buyer’s claim.

6.3 If the Buyer is entitled to claims for damages or reimbursement of expenses due to defects pursuant to Art. 6.1 and 6.2 above, such claims shall become invalid with the expiry of the statute of limitations for claims for damages stated in Art. 5.3. Legal statutes of limitations apply for claims for damages pursuant to the German Product Liability Act (Produkthaftungsgesetz).

6.4 The above limitations and exclusions of liability shall not apply if more stringent liability is specified contractually or may be inferred from other contractual content, particularly content that addresses the assumption of a guarantee or procurement risk.

6.5 The Buyer is not entitled to demand compensatory damages instead of ordered goods or services if the violation of contractual duties on our part is immaterial.

6.6 Notwithstanding the above limitations, the Buyer’s legally established right to withdraw from the contract remains unaffected. In cases of a breach of contractual duty not resulting from a defect in the delivered goods, this is conditional upon our responsibility for the breach of contractual duty.