General Terms and Conditions

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I. General

1. The following, agreed upon General Terms and Conditions apply to all – including future – business transactions, agreements and negotiations with our business partners, henceforth referred to as "customer"; the conditions reflect that our business partners typically are industrialists. The terms and conditions are supplemented by the laws of the Federal Republic of Germany. The application of CISG (UN business rules) is contracted out, as long as the above choice of law is not void.

2. Our conditions are exclusive; we do not recognize opposing or diverging conditions of our customers. Our General Terms and Conditions apply also in case that we, without restrictions, carry out a delivery to a customer with opposing or diverging conditions. Our General Terms and Conditions are considered agreed upon at the latest when receiving our delivery or services.

3. Any and all contracts are signed with our written confirmation or the shipment of the object of the contract or the execution of works. Additional agreements, declarations as part of a consultation for an order, as well as all other agreements, such as assurances of condition, especially performance capacities of the machinery to be delivered and contractual conditions, are only binding for us if declared or confirmed in writing by us. Modification of the written form clause can only be done in writing.

4. The voidness of one individual clause of these Conditions has no effect on the validity of the other Conditions.

5. The place of execution of our performance, or the location of the goods for transportation and delivery purposes is Gescher. Gescher is always the place of execution for the payment of compensation of our services as well as all other obligations of the customers. For all disagreements, directly or indirectly related to the business relationship, including actions on a bill of exchange and on checks, the city of Borken/ Westfalen is agreed upon as place of jurisdiction if the customer is a merchant or if there is no general domestic place of jurisdiction.

II. Delivery and transfer of perils

1. Performance times quoted by us (delivery, assembly, and repair times) are without commitment. If, in an exceptional case, a binding performance time was promised, it only starts with our written confirmation of order and after clarification of all open questions associated with the contract. Commencement or progress of the performance times is impeded as long as the customer is in default with any performances. The grace period that needs to be conceded to us is six weeks at minimum. Claims for compensation of delay-related damages or claims for damages due to exceeding of the performance time is limited, except in cases of deliberate fault, to 0.5% for each full week of the delay. As a whole it is limited to a maximum of 5 % of the value of that part of the total performance that, due to the delay, cannot be used on time or not as contractually agreed upon. In case of slight fault, liability for delays caused by us is excluded.

2. In case of Force Majeure and other unforeseeable, exceptional or other circumstances without fault, such as difficulties in material acquisition, interruption of operations, strike, lock-out, deficiencies of transportation means, governmental interventions, power supply interruptions, etc., including such events taking place at the pre-supplier or sub-contractor level, our performance times are extended by the amount of time lost due to interferences or their after effects. If the delays continue for more than three months, the customer has the right to withdraw from the contract. In case that the circumstances referenced above make the delivery or the performance impossible or unacceptable, we are released from the conditions. If the performance time is extended or if we are released from the conditions, the customer has no rights upon which he can base claims for damages. We undertake to inform the customer immediately of the referenced circumstances if possible.

3. If the conditions set out in IV (3) are met or if the customer is in default of accepting a delivery or partial delivery, we have the right to execute, at our own choosing, due deliveries against prepayment or surety.

4. Any packaging and loading means are chosen by us, excluding any liability. Shipments are always arranged to the best of our abilities, however without responsibility for the selection of the transportation means and routing. Packaging and loading means, except pallets, are not taken back.

5. All potential agreements regarding transport and insurance charges, e.g. CIF, FOB, fco etc., are purely expense clauses; die risk of loss, damage or deterioration is always transferred to the customer when the shipment is ready for delivery or when the shipment has been declared "ready for shipment" or "ready for delivery" to the customer.

6. The delivery time is met when the object(s) to be delivered have left the company by the time of expiration of the delivery time, or if the customer was notified that the shipment is "ready for shipment" or "ready for delivery". Partial deliveries are permissible.

7. If the shipment or the acceptance is delayed at the request of the customer, he will be billed for the costs associated with the storage, starting one month after the "ready for shipment" notification, minimum _ per cent of the billed amount for each month in the case of storage on our company premises.

8. Deliveries will only take place according to current EU Guidelines. Security regulations ex EU are not considered.

III. Quotations and Prices

1. Our quotations are non-binding. If, in an exceptional case, a binding quotation was made, it expires no later than 30 days following submission unless the quotation itself states an expiration deadline that exceeds that period of time. The customer is bound to his quotations for 30 days, unless the circumstances do not extend the commitment over a longer period.

2. Quoted prices without addition are always net prices plus the current value added tax. For want of special agreement, the prices are ex works, inclusive of shipment at the company, exclusive of packaging and loading means. Discount, rebate or other reductions are allowed only if explicitly agreed upon.

IV. Payment

1. Liabilities for deliveries are to be paid in cash without any deductions free at paying office, unless agreed upon otherwise, following this schedule: 1/3 after receiving confirmation of order, 1/3 when the customer is informed that the main components are ready for shipment or delivery, the remaining amount 30 days following the date of invoice. Receipt of payment is the day on that we fully have the amount at our disposal.

2. Upon separate agreement, bills are accepted only in place of payment, like checks. All costs associated with the acceptance or collection are born by the customer. We are not liable for an on-time and proper presentation, raising of protest, notification as well as a potential rejection.

3. If the customer is in default with any payment obligations against us, all respite and prolongation agreements are void immediately; all existing liabilities against us are due immediately. All rights connected to the default also apply if we become aware of circumstances that are suited to reduce the creditworthiness of the customer. The proof of such events is considered to be rendered by the information received from a well-respected credit agency or bank, without the presentation of such information could be demanded from the customer.

4. The customer only has set-off and retention rights of any kind if his counterclaims are legally binding, undisputed and recognized by us. The customer is not authorized to exercise retention rights unless his counterclaim is based on the same individual shipment. We are authorized to set the order of redemption according to §§ 367, 366 II Civil Code, despite contrary stipulations of the customer.

V. Retention of Title

1. We retain ownership of the performance object (retention-of-title goods) until all payments from the existing business relationship with the customer have been made. For open invoices, the retained property also serves as security for our balance claims. If we agree with our customer on a checkbill transaction, the retention also extends to the answering of the bill of exchange and it will not expire by depositing received checks.

2. The customer has the right to resell the item in his normal business transactions; however, now he already relinquishes all his claims which he will gain from the resale against his customers or third parties, no matter if the retention-of-title goods were resold with or without processing, in the amount of the final invoice amount (including respective value added tax) of our claims. If the customer is not in default of payment, he may fuduciarily collect the claims assigned to us based on this document, as long as he is not in default of payment, particularly no filing for insolvency has occurred or that we have withdrawn this consent, under the condition that he will transfer the collected sum up to us, to the amount of the still existing and due claims against him. If the authority to collect is void in the aforementioned cases, we can demand that the customer announces to us the assigned claims and the respective debtors, that he make all necessary statements required for the collection, make available the associated documents, and that he informs his debtors of the assignment.

3. Processing or shaping of the retention-of-title goods by the customer is always carried out for us. If the retention-of-title goods are processed, connected, mixed or blended with other items that we are not the owner of, we acquire the joint ownership of the new item at the ratio of the value of the retention-of-title goods to the other processed etc. items at the time of processing etc. Same regulations apply for the new item as did for the retention-of-title goods. If the client manufactured a new item, as an order from a third party and by using the retention-of-title goods, that should be viewed as main item, the customer concedes joint property and keeps the new item for us at no charge.

4. If the realizable value of our securities exceeds the claims to be secured by more than 10 %, we are, in so far as that goes, obligated to release securities of our choosing at the demand of the customer or a third party affected by the transfer of surety.

5. We are authorized to inspect the retention-of-title goods at any time at its current location. In case of contrary to contract behavior of the customer, especially default of payment, we are authorized to take back the security goods after setting an appropriate deadline. Our taking back the retention-oftitle goods does not constitute a withdrawal from the contract. After taking back the retention-of-title goods, we are authorized for its realization; the realization amount is to be counted towards the indebtedness of the customer, minus appropriate realization cost.

6. The customer is obligated to treat the retention-of-title goods with care and to sufficiently insure them for their replacement value against the risks of fire, water, and theft at his own costs. Upon demand he is to relinquish his claims against the insurance company in our favor. In so far as maintenance and inspection works need to be carried out, the customer shall carry them out in a timely manner and at his own costs, unless different contractual arrangements were made.

VI. Claims for Defects and Liability

1. Precondition of claims for defects by the customer is that the latter has fulfilled his obligations for inspection and rebuke according to § 377 Commercial Code whereby, for clear and during careful inspection identifiable defects, a rebuke must be filed within 8 days after receiving our shipment or service.

2. We are only liable for defects resulting from third party deliveries to the extent that our suppliers are required to be liable for defects. We have the right to free ourselves of any liability by assigning our claims against the supplier; our liability is resurrected again if the availment of the supplier by our customer was ultimately unsuccessful.

3. Defects of one part of the shipment do not constitute a reason to rebuke the entire shipment if the defect-free part forms a separate usable good.

4. The liability for defects applies, at our choosing, only to subsequent performance or to decrease of the compensation (depreciation). If the subsequent performance; executed at our discretion; fails in a reasonable time frame, then the customer is authorized to withdraw from the contract or to depreciate, at his choosing.

5. In case of correction of defects, we are obligated to cover all required expenditures for the purpose of correction of defects, particularly transportation or transport costs, labor and material costs, unless they are increased due to the transfer of the contractual delivery to another location than the place of execution or the transfer to another location than was stated in the contract for the delivery of performances. The customer guarantees, at his costs, accessibility to the defective object; we are authorized to check the presence of the indicated defects under realistic conditions at the customer’s facilities.

6. For all shipments, the commercial manufacturer deviations and tolerances are considered as agreed upon. The information in descriptions, brochures, drawings, sketches, CDs etc, composed by us or third parties and / or taken as a basis for our quotations, are to be viewed as guidelines. All statements regarding condition or usability of the contractual performances always have to be stated explicitly and in writing and need to be marked as agreements in the contract. Stand-alone and dependent warranties shall be marked as such; otherwise they are agreements about the condition. For third party manufacturer’s components, as a basic principle, the product description of the manufacturer is considered agreed upon. Public statements, boosts and manufacturer’s advertisements do not constitute a contractual statement of condition. Transfer of a sample also contains no agreement about the condition but the samples are simply an illustration of the type of goods. The statement about the production, composition, mode of action, suitability and application of our performances do not release the customer of carrying out his own tests and examinations.

7. Results obtained while carrying out experiments, trial runs etc. are excluded from any liability. Liability for defects caused by unqualified or improper utilization, faulty assembly or commissioning by the customer or third parties, normal wear, faulty or careless treatment, unqualified operating material, replacement materials, faulty construction, improper building site, chemical, electro-chemical, electrical, electronic or weather influences are excluded unless caused by us. We are not liable for a production that the customer suggested and approved.

8. The liability for defects for the functioning of the conveyor system depends on an assembly by our specialized erecting engineers. Modified, divergent utilization compared to the demands specified according to the contract exclude us being liable for defects. Incidentally, we are liable according to legal regulations if the customer files for claims damages resulting from intent, gross negligence, or culpable violation of an essential contractual duty. As long as no intent is claimed, every liability for damages is limited to foreseeable, typically occurring damages.

9. The period of limitation for claims for defects is 12 months.

10. With regard to the materials-handling positions of an installation to the operative range and intended use specified in writing by the customer, we have the responsibility for a production of the individual work pieces according to the rules of engineering and an adapted instruction for operation. We are not liable for a production that the customer suggested and approved.

Stand: 01/2012
Traporol GmBH

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