General Terms and Conditions of Sale and Delivery of

Hermetik Pump International GmbH

 

1        Scope of application

1.1     Our General Terms and Conditions of Sale and Delivery shall apply to all contracts, supplies and other services inclusive of consulting and assembly services. Quotations, purchase orders, cancellations, modifications and amendments shall require the written form. Agreements of whatever kind, entered into verbally or by telephone, shall require our confirmation in writing in order to be valid. Any conditions to the contrary imposed by the beneficiary shall not be accepted by us unless expressly and individually agreed.

Quotations and confirmations of orders submitted by us shall be effective also in cases of submission by electronic data transfer.

1.2     We shall reserve all property rights and copyrights to samples, drawings, models and information of any kind. They must not be made accessible to third parties and shall be returned to us at request.

1.3     We undertake to disclose the information and records designated as confidential by the customer only to third parties with the latter’s approval.

1.4     We shall not be responsible for faults and defects resulting from the drawings, performance data or technical information provided by the customer.

 

2        Prices und payment

2.1     Our prices shall be quoted ex works exclusive of packaging, turnover tax, freight or shipping charges respectively, and insurance unless otherwise determined by written agreements.

2.2     Prices shall be paid net without deduction and within 30 days’ time.

2.3     Any setoff against counterclaims shall be permitted only to the extent such counterclaim has not been contested and was established with binding effect.

 

3        Time limits, periods, acceptance

3.1     Any delivery periods agreed shall be extended by the duration of any restraint or interruption upon the occurrence of unforeseeable events not accountable to us and beyond our control, such as e.g. strike, lockout, breakdowns and delays in the supply of base materials indispensable to production, provided that such restraints can be proved to have a substantial effect on the finishing of products. Such circumstances shall also not be accountable to us even if we are already in default.

3.2     When the shipment or the acceptance of a delivery item is delayed for reasons attributable to the customer’s fault, the latter shall be charged with the costs arising from such delay, beginning one month from the date of notification of readiness for shipment or acceptance respectively.

3.3     The risk shall pass to the customer when the delivery item has left our works, irrespective of whether partial shipments are made or we have taken charge of other services, e.g. payment of shipping charges, delivery and erection. The customer must not refuse the acceptance on account of immaterial defects.

3.4     Should the dispatch or the acceptance respectively be delayed or cancelled as a result of circumstances that are not accountable to us, the risk shall pass to the customer at the date of notification of readiness for shipment or acceptance- We undertake, at the customer’s express request and charge, to underwrite the insurance contracts required by the latter.

3.5     In the commercial intercourse, we are entitled to perform and invoice part deliveries and/or partial services within a reasonable scope.

 

4        Reservation of title

4.1     We reserves the property right to the delivery items until complete payment of all accounts receivable from the business relationship between us and the customer, as well as to any future claims as far as they are related to the delivery items. The customer is obliged to store the conditional commodity properly. He is not authorized to transfer the ownership of the goods to third parties.

4.2     The customer is obliged to insure the delivery items against theft, breakage, fire, water and other risks at his expense. Should he fail to do so, we are entitled to contract an insurance at the customer’s expense.

4.3     In case of a behaviour by the customer not conforming to the contractual terms, in particular of default in payment, we shall be entitled to take back the delivery item and the customer is obligated to hand it over. The taking-back as well as an attachment of the delivery items shall be deemed to be a withdrawal from the contract only when expressly declared by us in a written statement. In case of attachments or other interventions by third parties, the customer shall be obliged to notify us in writing without delay.

4.4     Any petition for insolvency proceedings shall entitle us to withdraw from the contract and to request the delivery item to be returned immediately.

4.5     The customer shall be entitled to resale the delivery items in the ordinary course of business, but he shall already now assign to us all claims in the amount of the invoiced final amount (including value-added tax) accruing to him from the resale against his customers or against third parties, irrespective of whether the delivery item is resold without processing or subsequent to processing. The customer shall be entitled to collect such debt outstanding even after its assignment. Our authority to collect such debt ourselves shall remain unaffected thereby. However, we undertake not to collect the debt as long as the customer duly meets his payment obligations and does not get into default. In such case, we may require the customer to disclose to us the claims assigned and their debtors, provides us with all the information needed for collection, hands over the pertinent records and informs the debtors (third parties) of the assignment.

4.6     The processing or transformation, by the customer, of the delivery item shall always be performed on our behalf. If the delivery item is processed in combination with other items not belonging to us, we shall acquire the coownership of the new object at the ratio of the value, at the time of processing, of the delivery item to the other items incorporated. Beyond that, for the item resulting from the processing, the same shall apply as for the conditional commodity.

 

5        Warranty

                    By warranty of title and warranty of merchantable quality of the goods s                             upplied, we shall, to the exclusion of further claims, guarantee the following:

5.1     Defects in quality

5.1.1  In case of justified complaints, we are free to choose between rectification of defects or substitute delivery. If the rectifications of defect or substitute deliveries fail, the customer shall be entitled to demand the rescission of the contract or a reduction in remuneration.

5.1.2  In the event that our supplies were based on the customer’s drawings, specifications, samples or the like, the customer shall assume the risk of suitability for the intended application. The time of transfer of the risk shall be of the essence for the contract-conforming condition of the supply. If acceptance of the goods or first-sample testing has been agreed, a complaint for defects which the customer could have discovered during careful acceptance or first-sample testing, shall be excluded.

5.1.3  Following a mutual agreement with us, the customer shall be bound to grant us the required time and opportunity to adopt all measures necessary within the scope of our warranty obligation; otherwise, we shall be released from our liability for defects. Only in urgent cases shall the customer have the right, in order to avoid unproportionately great damage, to eliminate the defect himself or through professional third-party experts. He shall inform us in advance and obtain our approval in writing. Only under such conditions shall he be entitled to claim compensation of the resulting necessary costs from us as far as they are commensurate according to the circumstance.

5.1.4  No warranty shall be assumed particularly in the following cases: Unsuitable or improper use, faulty assembly or start-up by customer or third parties, natural wear and tear, faulty or negligent treatment, unsuitable means of operation, faulty construction work, unsuitable construction base, chemical, electrochemical or electrical influences.

5.1.5  In the event of improper rectification by customer or third parties, we shall not be liable for the resulting consequences. The same shall apply to modifications of the delivery items performed without our previously obtained written approval. The onus of proving the proper rectification shall be with the customer.

5.2     Defects in title

5.2.1  Should the use of the delivery items lead to an infringement of domestic industrial property rights or copyrights inside the country, we shall, in principle and at our expense, procure the right to continued use for the customer, or modify the delivery item in a manner acceptable to the customer, so that the infringement of the property right no longer exists. Should this be impossible on financially reasonable terms or in an adequate period, the customer is entitled to withdraw from the contract. On such preconditions, we, too, shall have the right to withdraw from the contract. Beyond that, we shall hold the customer harmless from claims raised by the holders of the respective property right, which were not contested or established with binding effect.

5.2.2  The obligations assumed by us under subsection 5.2.1 shall be complete and final regarding property right or copyright infringements. They shall subsist only on the proviso that – we are immediately informed by the customer of any property right or copyright infringement claim asserted;

– we are supported by the customer on an adequate scale in defending the claims asserted or enables us to realize the modification measures;

– the right to adopt any measures of defence including out-of-court measures is reserved to us;

                              – the defect in title is not based on an instruction by the customer, and

– the infringement of the right was not caused by the customer modifying the delivery items without being authorized to do so or has used the items contrary to the contractual terms.

6        Liability

6.1     We shall not be liable for damage caused by improper operation and maintenance by the customer.

6.2     For damage not occurring on the delivery item proper, the liability for whatever reason shall be excluded.

6.3     In case of negligent violation of material contract obligations, the claim for damages in case of ordinary negligence shall be limited to the reasonably foreseeable damage typical of a contract.

6.4     For the violation of accessory contractual obligations, the above-stated principles shall apply mutatis mutandis.

6.5     Exempt from any restriction or exclusion of liability shall be claims to damages on the grounds of injury to life, body or health if we are held accountable for the violation of a duty, as well as claims for the substitution of other damage attributable to a violation of duty by deliberate or gross negligent violation of duty on our side or by a legal representative or vicarious agent.

6.6     All claims customer – for whatever legal cause – shall become statute-barred after 12 months. For deliberate or malicious behaviour as well as for claims under the Product Liability Act, the legal time limits shall apply.

 

7        Use of software

7.1     As far as software is included in the scope of delivery, the customer is granted a non-exclusive right to use the supplied software including its documentation. It is made available for being used on the delivery item for which it is intended. Using the software on more the one system is prohibited.

7.2     The customer is allowed to reproduce, rework, translate or convert the software from the object code into the source code only within the scope permitted by law (Arts. 69 a ssq UrhG[Copyright Act]) The customer undertakes not to remove manufacturer’s data – especially no copyright notes – and not to alter them without the supplier’s prior express approval

7.3     Any other rights to the software and the documentation including copies shall remain with the supplier or the software provider respectively.. A granting of sublicenses is not permitted.

 

8        Final provisions

8.1     The venue for in the commercial intercourse shall be Bochum. Besides, we shall be entitled to choose the general venue of the buyer.

8.2     The place of performance shall be Witten.

8.3     The legal relationship existing between the parties shall be governed by German law to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Unless opposed by our General Terms and Conditions of Sale and Delivery, the trade clauses as defined by Incoterms (2010 version) shall apply complementarily.

8.4     Should one or several provisions of the present terms and conditions be or become ineffective, the validity of the remaining provisions as a whole shall not be affected thereby. The same shall apply to any gaps. The parties to the respective contract shall in such case agree a valid provision which corresponds to or comes as close as possible to the economic purpose of the invalid provision(s). In the place of the invalid or unenforceable provision or to fill a gap, an adequate arrangement shall apply which comes closest to what had been intended or would have been intended by the parties according to the meaning and purpose of the contract concerned if they had considered this aspect while concluding the contract or when subsequently incorporating a provision.

8.5     Any data obtained during the business relationship shall be saved in files within the company group of Hermetik Pump International GmbH and Hermetik Hydraulik AB and communicated between them. They shall not be disclosed to third parties without authorisation.

General Conditions of Purchase of

Hermetik Pump International GmbH

 

1        Scope of Application

1.1     These General Conditions of Purchase – hereinafter referred to as EGB – shall apply to all our purchase orders and purchase order supplements. Purchase orders, cancellations, modifications and amendments shall require the written form. Agreements of whatever kind, made verbally or by telephone, shall require our confirmation in writing in order to be valid. Any conditions to the contrary imposed by the contractor shall not be accepted by us unless expressly and individually agreed.

1.2     Orders shall be confirmed or rejected in writing within 3 working days, otherwise they shall be deemed to have been accepted..

1.3     Offers shall be free of charge and without any commitment on our side.

 

2        Period of delivery, delay in performance

2.1     The dates and delivery periods agreed shall be binding. A delivery period agreed shall begin as at the date of receipt of the order by the supplier. The period shall have been complied with upon complete arrival of the goods at the agreed place of performance. Partial shipments shall be permitted only subject to an explicit approval. For supplies from subcontractors, the supplier shall be liable to the same extent as for supplies of his own.

2.2     As soon as the supplier has reason to assume that a delivery may be delayed, he shall forthwith give notice in writing while stating the reasons and the presumable duration of the delay.

2.3     Any event of Force Majeure as well as strike and lockout at the facilities of the contracting party concerned shall entitle the latter to postpone the performance of the obligations assumed, or in the event that the performance of the contract is fully or partly unreasonable, to withdraw from the contract to such extent without causing claims for damages to the other party.

2.4     If the supplier is in default with the complete or partial delivery for reasons attributable to him and also fails to perform after the lapse of a respite granted by us or as required by the legal regulations, or if it has been established that he will not perform the service at all, we shall, in the place of performance, be entitled to claim damages and indemnification for the damage caused by the delayed performance.. We shall in particular be entitled to procure ourselves a substitute at the supplier’s expense.

2.5     The supplier shall have no right to claim any reimbursement of expenses so far spent by him on the execution of the order. Furthermore, we are entitled to withdraw from the contract.

 

3        Prices, delivery

3.1     Unless otherwise agreed, prices are to be understood ex works, customs cleared (DDP according to Incoterms 2010) inclusive of packaging, turnover tax excluded. The prices shall include all services which are to be performed by the supplier at the place of performance. Loan packaging is to be taken back by supplier at his own expense.

3.2     The supply shall be accompanied by delivery documents showing type, quality, quantity and weight. Only the weight and quantity stated in the delivery documents shall be deemed to have been accepted by us. The delivery documents shall also contain our order reference number and our item code

3.3     The material risk until acceptance of the goods by us or by our authorized representative at the place where the goods have been agreed to be delivered, shall be with the supplier

 

4        Information for execution

4.1     We shall retain the ownership of all records (e. g. drawings) or manufacturing documents made available by us. They must only be used, reproduced or handed over to third parties for processing the offer and executing the order. They shall be returned to us immediately and free of charge right upon execution of the order.

4.2     We may claim the gratuitous and immediate transfer of all manufacturing documents (e.g. models, tools) and records which the supplier is using during the execution. Whenever the supplier is in default, we shall be permitted to use all rights of use free of charge as far and as long as they are needed for achieving the agreed success.. We shall be entitled without any special permission to use them for achieving the contractual success as well as for procuring accessory equipment for maintenance and repair, for later changes and for manufacturing spare and replacement parts by us or by outside manufacturers and to hand them over for such activities. If required, the manufacturer is to provide us also with such other information as required for bringing about the contractual success.

 

5        Defects

5.1     The services have to show the properties assured, conform to the acknowledged standards of technology and must not have defects setting aside or reducing the value or the fitness for ordinary use or for the use defined in the contract. The perfect condition of the service performed by the supplier shall also require compliance with the regulations for labour protection, in particular GPSG and Art. 2 para. 1S. 1 + 2 VBG 1 as well as for environmental protection. Art. 377 HGB (German Commercial Code) shall – as far as legally permitted – be excluded. The statutory requirements of inspection and notification of defects have to be complied with – notwithstanding the legal time limit requirement and only insofar as Art. 377 HGB will at all be applicable under this agreement – within 2 weeks’ time. Our obligation to inspect the supplied goods for notification of complaints shall only begin when we proceed to the processing of the material.

We are obliged to notify obvious defects and shortages without delay. In case of concealed defects, the obligation of complaint shall begin after their discovery.

5.2     In the event of defectiveness or lack of a warranted quality of the goods supplied, we shall be entitled to recourse to the legal rights unless hereinafter otherwise provided for. At our discretion, we may claim subsequent performance, withdraw from the contract, reduce the  urchase price or demand compensation of damage or reimbursement of futile expenditure

5.3     The absence of defects of his service shall be warranted by the supplier for 2 years from the transfer of risk.

5.4     If, because of the defectiveness of the material delivered by the supplier, we are obliged to take back any products manufactured and/or sold by us or if the purchase price payable to us was reduced or other claims were raised against us, we are entitled to take recourse to the supplier without having to fix a deadline that would otherwise be required to assert our rights of complaint. We shall be entitled to claim reimbursement of our expenses in reasonable proportion to the service agreed, which we have to bear in the relationship with our customer. Our rights of recourse shall be statute-barred not earlier than two months from the date at which we have met the claims of our customers against us, at the latest 5 years after delivery.

5.5     The supplier shall undertake liability for ensuring that his services and their exploitation by us do not infringe the property rights of third parties. The same shall apply to the procuring of accessory equipment, to maintenance and repair, to later modifications and the manufacture of spare and replacement parts by us or by outside manufacturers.

 

6        Invoicing and payment terms

6.1     The invoice duplicates shall be specifically marked. It is not permitted to combine more than one order in a single invoice.

6.2     The basis of invoicing shall be the quantities, contents and piece numbers acknowledged by us. In case of differences in weight, we shall only acknowledge the weights determined by our weighing staff.

6.3     We shall pay at our discretion by cheque or remittance or by promissory note or trade bill respectively.

6.4     Unless otherwise agreed, payments shall be effected within 14 days subject to a 3 % discount or 30 days without deduction. The time limits for payment shall begin at the earliest as at the day of receipt of the invoice provided that the goods have been delivered completely. Should our obligations of payment be counterbalanced by accounts receivable, we shall be entitled to make setoffs irrespective of the mode and time of payment.

6.5     Payments shall not be interpreted as an acknowledgement of the absence of defects of the service received, nor as a waiver of rights.

6.6     If we make a down payment on our order, we shall at any time be entitled to demand the transfer of ownership by way of security for the corresponding materials, in particular for the items ordered and having undergone treatment.

 

7        Assignment, transmission of contract, change of company name

7.1     The supplier shall not assign any claims against us neither in full nor in part; without our prior approval in writing such approval shall not withheld by us without important reason.

7.2     The supplier shall not, without our prior approval in writing, transfer the performance of his contractual obligations to third parties, neither in full nor in part. If such approval is granted, the supplier’s responsibility towards us shall continue.

7.3     The supplier shall be obliged to advise us immediately of any transmission of contract by operation of law, and of any change of the company name.

 

8        Final provisions

8.1     The venue for both parties shall be Bochum. Beside, we shall be entitled to choose the general venue of the supplier.

8.2     The place of performance for payment claims of the parties shall be Witten, for any other claims the in-plant „Address for Shipments“ stated in our ordering sheet, or any other place of delivery indicated by us.

8.3     The legal relationship existing between the parties shall be governed by German law to the exclusion of the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods (CISG). Unless opposed by our General Conditions of Purchase, the trade clauses as defined by Incoterms (2010 version) shall apply complementarily.

8.4     Should one or several provisions of the present EGB be or become ineffective, the validity of the remaining provisions as a whole shall not be affected thereby. The same shall apply to any gaps. The parties to the respective contract shall in such case agree a valid provision which corresponds to or comes as close as possible to the economic purpose of the invalid provision(s). In the place of the invalid or unenforceable provision or to fill a gap, an adequate arrangement shall apply which comes closest to what had been intended or would have been intended by the parties according to the meaning and purpose of the contract concerned if they had considered this aspect while concluding the contract or when subsequently incorporating such provisions.

8.5     It is not permitted to use our enquiries and orders for advertising purposes.

8.6     Any data obtained during the business relationship shall be saved in files within the company group of Hermetik Pump International GmbH and Hermetik Hydraulik AB and communicated between them. They shall not be disclosed to third parties without authorisation.