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    Terms and Conditions
     

     

    Sales Terms and Delivery Conditions of ept GmbH

    I.     General information and scope ofterms


    Our Sales Terms and Delivery Conditions shall apply exclusively and for each contract awarded by us, in the case of a regular business relationship also for any and all future trans-actions concluded with the Purchaser. They shall only apply vis-à-vis Contractors (natural persons or legal entities or business partnerships having legal capacity and acting in pursu-ance of their commercial or independent professional activities in concluding a legal transac-tion). We shall not acknowledge any contrary or deviating conditions of the Purchaser, unless we have agreed explicitly to the applicability hereto in writing. Such an acceptance hereof shall only be deemed to be given for the respective individual case, and not for previous or future deliveries. Our Delivery Conditions and Payment Terms shall also apply even if we execute the delivery without reservation in knowledge of the Purchaser’s opposing or deviat-ing conditions.

    II.     Materialisation of agreements and contract documents
    1. Our offers are subject to confirmation, they shall be deemed to be a request to surrender the Purchaser’s quotes. Our cost estimates shall be non-binding.
    2. An agreement with us shall not be reached until we have accepted the Purchaser’s con-tract in writing, or confirmed the Purchaser’s declaration of acceptance in writing or have delivered the goods ordered or have performed the services commissioned. 
    3. Any and all agreements made between us and the Purchaser at the point of concluding the Agreement shall not be valid unless made in writing. Our employees shall not be authorised to agree to modifications or supplementations to the Agreement without ob-serving the written form requirement. Modifications of the Agreement either orally or by telephone shall only be valid if they have been agreed by the Purchaser with such employees who are authorised by law or for the rest by a special proxy to represent vis-à-vis the Purchaser which has been communicated in writing.
    4. The information contained in catalogues, prospectuses, circulars, advertisements, figures and price lists on weights and measures are only approximately significant within the scope of customary use unless these have been explicitly designated or agreed as bind-ing. 
    5. Plans, technical documents surrendered to the Purchaser prior to or after conclusion of the contract shall remain exclusively our property. We shall reserve the right to any and all copyrights or other industrial property rights. Without our approval these documents must neither be used for any purposes contrary to agreement, nor in particular repro-duced or made accessible to any third party. By request these shall be immediately re-turned to us.
    III.  Prices and payment
    1. Our prices are valid ex works including lading at the production site, however, exclud-ing packaging, freight charge and other packaging expenses, plus the respectively valid statutory Value Added Tax. 
    2. In the case of agreements stipulating our delivery or performance for a period lying over two months after the date of conclusion of the contract, we shall reserve the right to modify our prices accordingly, if after concluding the agreement up to the point of ful-filling the contract cost increases, in particular as a result of collective agreements or material price increases arise. We agree to submit proof hereof to the Purchaser by spe-cial request.
    3. Our invoices shall be payable with immediate effect and without any deduction.
    4. The Purchaser shall be deemed to default in payment by a reminder which is sent out as soon as the payment becomes due, at the latest, however, 30 days after our invoice has become due and following the receipt of our invoice or of a similar request for payment.
    5. If the Purchaser defaults in payment we shall be authorised to charge default interest in the amount of 12 % p.a., at least however interest in the amount of 8% above the base  interest rate. In the former case, the Purchaser shall, however, be authorised to submit proof of the fact to us that no damage or a significantly minor damage occurred. If we are able to document proof of the fact that a higher default damage has occurred, we shall be authorised to lodge an appropriate claim. 
    6. If the Purchaser defaults in payment of deliveries or services which are based on the same legal relationship, we shall be authorised to demand advance payments as well as to retain any not yet delivered goods or not yet performed services. If, after concluding the Agreement, it becomes apparent that our payment claim is endangered as a result of lacking performance on the part of the Purchaser, we shall be authorised to determine an appropriate period in which the Purchaser shall furnish an appropriate security. After a fruitless expiry of the time-limit we shall be authorised to rescind from the Agreement. This shall also apply if we are not liable to deliver our products/render our services in advance, but have to execute preliminary work to ensure an execution of the contract in compliance with the agreed time schedule. In this case, agreed delivery schedules shall be extended by the same time frame which has lapsed between our deadline and the point of furnishing the security.
    7. The Purchaser shall only be entitled to offsetting rights if his counterclaims have been le-gally recognised, are uncontested or have been acknowledged by us. He shall in so far only be permitted to exercise a right of retention, in so far as his counterclaim is based on the same contractual relationship.
    IV. Reservation of title
    1. We hereby reserve the right to title in the goods delivered until all obligations arising from the business connection with the Purchaser have been fulfilled. In the case of cur-rent accounts the retention of title shall be deemed to be a collateral for the respective outstanding balance of receivables. In the case of any actions contrary to the agreement on the part of the Purchaser, in particular in the case of default in payment, we shall be authorised to redeem the goods delivered. A redemption of the goods delivered shall not be deemed to be a rescission from the agreement.
    2. The Purchaser shall be committed to store the goods subject to reservation of title ap-propriately and to treat these with due care, in particular to insure these sufficiently at his own expense against fire, breakage, theft and other damage.
    3. The Purchaser shall neither hypothecate nor transfer as security the goods subject to reservation of title prior to complete payment thereof. In the case of a levy of execution on the goods or any other intervention by third parties, he shall immediately inform us thereof in writing. In so far as the third party is not able to refund the costs for judicial or extrajudicial proceedings against him, the Purchaser shall warrant for the loss in-curred.
    4. The Purchaser shall be authorised to resell the goods subject to reservation of title within the regular course of business, unless he defaults in payment at that point of time. At the point of signing the agreement he hereby assigns all rights to us by way of secu-rity resulting from resale vis-à-vis his customers or third parties. The Purchaser shall be authorised to collect these accounts receivable even after the assignment. We shall be authorised to collect these accounts receivable ourselves, shall however refrain from taking such an action as long as the Purchaser does not default in payment or in par-ticular as long as no petition for the institution of bankruptcy proceedings has been filed. If this is, however, the case we shall be entitled to demand the Purchaser to disclose the assigned liabilities and the names of their debtors, to make all necessary statements re-quired for collection, to surrender the respective documents and to inform the debtors of the assignment.
    5. Processing and remodelling the goods subject to reservation of title by the Purchaser shall always be performed on our behalf. If the goods subject to reservation of title are processed with other objects not belonging to us, we shall acquire co-ownership in the new goods in the ratio of the value to the other processed objects at the point of time of processing. For the object developed as a result of processing the same regulations shall, for the rest, apply as for the object delivered under reserve. 
    6. If the goods subject to reservation of title are merged or mixed with other objects not belonging to us in such a way that they become substantial parts of a standardised prod-uct, we shall acquire co-ownership in the new object in the ratio of the value of the goods subject to reservation of title to the other connected or mixed objects at the point of time of connecting or mixing these. If the connection or mixture is performed in such a way that the object of the Purchaser is to be viewed as principal object, it is hereby agreed that the Purchaser shall transfer co-ownership to us proportionately. The Pur-chaser shall then store the sole or co-ownership thus arising in this way on our behalf. For the object created as a result of connection or mixture the same regulations shall, for the rest, be applicable as for the delivered goods subject to reservation of title.
    7. We hereby commit ourselves to release the securities to which we are entitled by the Purchaser’s written request in so far as the realisable value of the securities exceeds the accounts receivable to be secured by more than 10 %; we shall be responsible for the selection of securities to be released.
    V. Delivery schedule
    1. Delivery deadlines and schedules shall only be binding unless these have been explicitly agreed in writing. Compliance with our delivery commitment requires the clarification of all commercial and technical issues, the availability of all tools and/or moulds re-quired for manufacturing the goods as well as the timely and proper fulfilment of the Purchaser’s obligations, in particular the execution of any acts of cooperation of any kind. If the Purchaser fails to comply with such obligations, the delivery schedule shall be extended appropriately. This shall not be applicable, in so far as we have to justify the delay. 
    2. The delivery schedule shall be deemed to be complied with on our part, if the delivery item has left our production plant by the end of the agreed term or if we have informed the Purchaser that the delivery item is ready for shipment, in so far as a debt to be dis-charged at the creditor’s domicile as an exception. In so far as an acceptance shall take place – the agreed date of acceptance shall be deemed to be decisive – with the excep-tion of a justified denial of acceptance, alternatively the notification of readiness for ac-ceptance.
    3. Interruptions of operations – not only in the own business, but also in foreign companies on which the production or transport depends – arising as a result of the occurrence of unforeseeable impediments lying beyond the sphere of our influence (in particular force majeure and other exceptional circumstances, such as industrial conflicts, sovereign measures and traffic disturbances), shall lead to an appropriate extension of the delivery period, in so far as these have an influence on production or delivery of the delivery item. 
    4. If we culpably default our liability to pay damages with regard to the damage caused as a result of our delay shall be limited to 5% of the purchase price. The Purchaser shall only be entitled to further claims in the case of intent, gross negligence or in the event of agreeing on a fixed transaction. In all cases in which our liability exceeds the amount of compensation stipulated in sentence 1, as well as in the case of entitlement to damages instead of performance, our liability shall be limited in accordance with clause IX (Li-ability).
    5. On the grounds of a belated provision of delivery or services, the Purchaser shall only be entitled to rescind from the agreement within the scope of legal terms, in so far as we are in default of delivering the service/products agreed on our part.
    6. In the case of call orders without agreeing delivery terms, production batches, or fixed acceptance dates, we shall be entitled to demand a binding deadline for such orders at the latest three months after submitting the order confirmation. If the Purchaser fails to comply with this requirement within three weeks, we shall be authorised to set an addi-tional period of grace of two weeks. After the fruitless expiry thereof, we shall then be entitled to rescind from the agreement and/or to demand damages.
    7. If the Purchaser expresses the desire to delay the shipment of the goods and we excep-tionally fulfil this requirement, we shall be authorised starting with the date of notifica-tion of readiness of the goods for delivery to charge a flat-rate storage payment corre-sponding to 0.5 % of the invoice amount relating to the goods in concern for each month which has commenced. If we are in a position to document proof of higher additional expenses, we shall be authorised to assert these claims.
    VI. Transfer of risk, partial deliveries and packaging
    1. We deliver exclusively ex works and therefore at the Purchaser’s risk, in so far as no other term has been agreed in the individual case. If we have committed ourselves to ex-ceptionally ship the delivery item, the risk of accidental loss and accidental deterioration of the delivery item shall pass on to the forwarding agent, freight carrier or any other person designated for the task of executing the shipment, even if we take over the ship-ping costs. In so far as the Purchaser does not issue any special instructions we shall be free to select the shipping mode and means of transport. Transport insurance policies shall only be concluded by us by explicit instruction and at the Purchaser’s expense. 
    2. In so far as acceptance of the delivery items is required, this shall be decisive with re-gard to the transfer of risk. Acceptance shall be performed immediately on date of sur-render of the delivers items, at the latest following our notification of the readiness for acceptance. The Purchaser shall not be entitled to reject acceptance in the event of oc-currence of an insignificant defect. It shall be deemed to be equal to acceptance if the Purchaser fails to accept the performance within an appropriate period defined by us and communicated to him despite being committed to do so. 
    3. The risk of accidental loss and accidental deterioration of the delivery item shall also pass on to the Purchaser even if he defaults in accepting the goods/services. 
    4. Partial deliveries in an acceptable scope shall be permissible.
    5. In so far as we take over the task of packaging the goods, this shall be performed by order of the Purchaser. The Purchaser shall bear the packaging costs. In so far as the Purchaser is authorised to return the transport packaging, he shall return the packaging materials at the Purchaser’s risk and expense to our business location.
    VII. Material defects
    1. The Purchaser shall examine the goods delivered by us immediately upon delivery within the scope of normal business procedures and in the event of any defect being ap-parent shall inform us without delay in writing of any such. If the Purchaser fails to comply with this duty, the delivery shall be deemed to be approved. If a defect becomes apparent at any later point of time, we shall be notified in writing of any such defect immediately following its discovery, otherwise the delivery shall be deemed to be in so far approved.
    2. Any and all parts or work performed reflecting a material defect, the cause of which already existed at the point of a transfer of risk to be accounted for by the Purchaser at any and all times – shall be remedied, redelivered or replaced free of charge at our dis-cretion. 
    3. For the purpose of performing any and all remedies and replacements which are deemed to be necessary by us, the Purchaser shall give us sufficient time and opportunity after prior consultation. If we have culpably failed to remedy a defect within an appropriate period defined by the Purchaser, he shall be authorised to eliminate the defect himself or to appoint the task of eliminating these to a third party and to demand reimbursement of the necessary costs by us. In urgent cases of endangering the operational safety resp. in order to avert inappropriate substantial damage it shall not be necessary to define a deadline. In this case we shall, however, be informed immediately in writing.
    4. If a reasonable number of remedies or replacement deliveries fails, the Purchaser – irre-spective of any possible damage claims in compliance with clause IX (Liability) – within the scope of statutory regulations shall be entitled to rescind from the agreement or to reduce payment. 
    5. We shall not bear any possible transport, route, labour and material costs for the purpose of supplementary performance, in so far as these are increased due to the fact that the delivery item has been transported to another address than the Purchaser’s branch office after delivery, unless the off-site disposal corresponds to the use thereof according to the designated terms of the contract.
    6. The Purchaser’s claims for defects shall come under the statute of limitations within 12 months following the surrender of the delivery item. In so far as an acceptance is re-quired, this shall be decisive for the beginning of the time limit. For faulty delivery items which were applied according to their customary purpose of use for a building and which led to the defectiveness thereof, the statutory time limits shall be applicable. These shall also apply, in so far as we have taken over a guarantee on the quality of the delivery items, with regard to fraudulent concealment of a defect, to cases of injury to life, the body or health, as well as in the case of intentional or gross negligent neglects of duty.
    7. Claims for defects shall not be deemed to exist in the event of an only irrelevant devia-tion from the agreed quality,  in the event of an only insubstantial impairment of the us-ability, in the event of natural wear and tear or damages incurred as a result of an un-suitable or improper use, faulty or negligent treatment, faulty assembly, excessive op-erational demand or on the grounds of special external influences which are not precon-ditioned according to the agreement. 
    8. For damage  claims or any other claims taking their place for compensation of futile expenses the regulations stipulated in Clause IX. (Liability) shall apply for the rest. Further or any claims other than those stipulated in the claims settled under Clause VII vis-à-vis us and our vicarious agents on the grounds of a material defect shall be ex-cluded.
    9. The contractor’s right to recourse in compliance with §§ 478, 479 BGB (German Civil Code) shall not be affected by the afore-mentioned regulations.
    VIII. Deficiencies in title
    1. In the event of the existence of deficiencies in title the regulations concerning material defects (Clause VII), in particular the time limit stipulated in Clause VII 6 shall apply accordingly.
    2. If no other agreement has been made we shall be obliged to execute the delivery free of industrial property rights and of third-party copyrights solely on national level. In so far as a third party raises justified claims on the grounds of an infringement of industrial property rights by deliveries performed by us and used according to contract vis-à-vis the Purchaser, we shall only warrant in so far as the Purchaser immediately informs us in writing of any claims enforced by a third party, refuses to acknowledge an infringe-ment and any and all repelling measures und composition negotiations are reserved to us.
    3. Claims on the part of the Purchaser raised on the grounds of an infringement of third-party rights shall be excluded, in so far as the Purchaser can justify the infringement of trade mark rights or if these are caused by a use which shall not be justified by us re-sulting from special instructions given by the Purchaser, by a use which is not foresee-able by us, or caused by the goods being modified by the Purchaser or used in a way contrary to the agreement.
    IX. Liability
    1. Damage claims against us shall principally only exist if we or our vicarious agents have acted intentionally or in gross negligence. In the case of an infringement of substantial contractual obligations we shall be liable also in the event of simple negligence. In this case our liability to pay damages shall be, however, limited to the typical contractual and foreseeable damage. 
    2. The afore-mentioned limitation of liability shall neither apply in the event of a physical injury of life, body and health, nor for claims according to the Produkthaftungsgesetz (German laws governing product liability) or for an acceptance of guarantee.
    3. The Purchaser agrees to inform us in advance, in so far as possible and reasonable,  on the contents and scope of any possible recall measures and shall give us the opportunity to render a statement.
    4. In so far as our liability is excluded or limited, this regulation shall also apply to the personal liability of our employees, workers, staff force, representatives and vicarious agents.
    X. Tools and moulds
    1. In so far as we manufacture tools and/or moulds to produce the goods ordered, we shall remain owners of these tools and moulds, even if the Purchaser takes over in full or in part the costs for manufacturing the tools and/or moulds. 
    2. The production costs to be borne by the Purchaser shall be invoiced separately and not together with the goods to be delivered. Unless no other agreement is made 50% of the invoice amount shall be payable without deduction together with the order confirmation and the remaining 50% of the invoice amount after notification of completion and deliv-ery of the pattern. The payment obligation shall also remain if the Purchaser does not accept the goods stipulated in the order confirmation or does not accept these in full scope, unless an acceptance of the goods stipulated in the order confirmation is justified on our part. In so far as only one part of the costs were charged to the Purchaser he shall refund our share in the costs for manufacturing the tools and/or moulds in full or in part, if he has to justify the non-acceptance or reduced acceptance. The cost share to be re-funded in the case of a reduced acceptance shall be calculated on the basis of the ratio between the volume of goods accepted and the volume of goods ordered.
    3. We agree to store tools and moulds free of charge for a period of three years following the last delivery to the Purchaser for a possible use for further deliveries to the Pur-chaser. If the Purchaser informs us by the end of this period that further goods will be ordered within one year for the production of which the tools and/or moulds will be re-quired, we agree to store these tools and moulds within this period. After the end of the storage period we shall be free to use the tools and moulds for in-house production pur-poses or in fulfilment of third-party orders.
    4. During the storage period we shall take over the costs for maintenance and repair as well as for an appropriate storage and shall take over the risk of damage to or destruction of the tools and/or moulds. If it is necessary to replace tools and/or moulds due to wear and tear on which the production of goods is based, these costs shall, however, be charged to the Purchaser.
    5. The Purchaser is aware of the fact that substantial development know-how is embodied in the tools and moulds commissioned by him and that we have a special interest in maintaining secrecy with regard thereto. For this reason it is hereby agreed that the Pur-chaser shall not be entitled to claim a surrender of the tools and moulds at any time, irre-spective on which the claim is based, not even despite the fact that the tool costs have been taken over in full scope by the Purchaser and/or at the end of the delivery relation-ship. The Purchaser’s right to demand damages shall not be affected hereby if the statu-tory prerequisites are given.
    XI. Indemnification from claims in the event of breaching industrial property rights
    1. If we are required to deliver according to drawings, models, samples or by using parts provided by the Purchaser, the Purchaser shall be responsible for ensuring that third-party industrial property rights on national and international level, in particular in the country of destination of the goods are not violated hereby. 
    2. The Purchaser shall indemnify us of third-party claims by the first written request and agrees to pay compensation for the damage arising hereby. The obligation to indemnify us shall refer to any and all expenses necessarily arising on our part or in connection with the third-party claim. 
    3. If we are prohibited to manufacture or to accept deliveries from a third party under ref-erence to a copyright belonging to him – we shall be authorised – without investigating the legal situation – to discontinue operations until the legal situation has been clarified by the Purchaser and third party. If the continuation of the contract is deemed to be un-reasonable on our part as a result of the delay, we shall be entitled to rescind herefrom.
    XII.  Place of venue, place of fulfilment and applicable law
    1. Exclusive place of venue for any and all disputes resulting directly or indirectly from the contractual relationship in business with merchants, legal entities under public law or separate estates under public law shall be the District Court of Weilheim / Court of the Land Munich II. We shall, however, be authorised to enforce claims vis-à-vis the Pur-chaser at the competent court located in the circuit in which the Purchaser’s business address lies.
    2. Place of fulfilment shall be our place of business in Peiting, unless another agreement is made in the individual case.
    3. German law shall be applied to the contractual relationship excluding the UN Conven-tion on Contracts for the International Sale of Goods.
                 

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    ept GmbH

    + 49 (0) 8861 / 2501 0
    + 49 (0) 8861 / 5507
    Bergwerkstr. 50
    86971 Peiting, GERMANY

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