General Terms and Conditions

1 Validity of Terms and Conditions

(1) All deliveries, services and offers from Ziegler Präzisionsteile GmbH (hereinafter referred to as “Seller”) are made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts concluded by the Seller with its contracting parties (hereinafter also referred to as “Client”) for the deliveries or services offered by the Seller. They also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed upon again.

(2) Terms and conditions of the Client or third parties shall not apply, even if the Seller does not separately object to their validity in individual cases. Even if the Seller refers to correspondence which contains terms and conditions of the Client or of third parties or makes mention of such, this does not suggest any agreement to the validity of such terms and conditions.

2 Offer and conclusion of the contract

(1) All offers communicated by the Seller are deemed to be subject to availability and non-binding unless explicitly marked as being binding or containing a defined term of acceptance. The Seller may accept orders or commissions within (14) days after receipt.

(2) The legal relationship between the Seller and the Client is solely governed by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Any oral assurances by the Seller before the conclusion of this contract are not legally binding and oral agreements by the contracting parties are replaced by the written contract, unless it is expressly stated therein that they will continue to be binding in each case.

(3) Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective. With the exception of managing directors or authorised signatories, the Seller’s employees are not entitled to make verbal agreements that deviate from the written agreement. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form, in particular when a copy of the signed declaration is transmitted.

(4) Information from the Seller on the item of delivery or service (e.g., weight, dimensions, practical value, capacity, tolerances and technical data), as well as our representations of the same (e.g., drawings and illustrations), are only approximately applicable unless its applicability for the purpose contractually envisaged requires precise conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, in particular, the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.

(5) The Seller retains ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Client. The Client may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties or reproduce them without the explicit approval of the Seller. At the request of the Seller, the Client shall return these items to the Seller in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not result in the conclusion of a contract. An exception to this is the storage of electronically provided data for the purpose of normal data backup.

3 Prices and Payment

(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are quoted in EUR ex works plus packaging, the statutory value added tax, customs duty for export deliveries as well as fees and other public charges.

(2) If the agreed prices are based on the Seller’s list prices and the delivery is to be made more than four months after the conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (in each case minus an agreed percentage or fixed discount).

(3) Invoice amounts are to be paid within 14 days without any deduction unless otherwise agreed in writing. The relevant date of payment shall be the Seller’s date of receipt. Payment by cheque is excluded unless separately agreed in individual cases. If the Client does not pay by the due date, the interest shall be charged on the outstanding amounts at a rate of 8% p. a. as from the due date; the right to apply higher interest rates and further damages in the event of late payment remains unaffected.

(4) The offsetting against counterclaims of the Client or withholding of payments against such claims is permitted only insofar as the counterclaims are undisputed or have been legally upheld or arise from the same contract under which the delivery in question was made.

(5) The Seller is entitled only to make deliveries or provide services against prior payment or deposit if, after the conclusion of the contract, circumstances become known to him which are of nature to considerably reduce the Client’s creditworthiness and on account of which the payment of the Seller’s outstanding demands from the relevant contractual relations (including those from other individual orders for which the same framework contract applies) is put at risk.

4 Delivery and Time of Delivery

(1) Deliveries are made ex works.

(2) Time periods and deadlines communicated by the Seller for deliveries and services are deemed to approximate unless a firm period or date has been specified or agreed upon. If shipping has been agreed upon, delivery dates and deadlines refer to the time of transfer to the forwarder, haulier, or other third party assigned to transport the goods.

(3) Notwithstanding his rights with respect to defaulting on the Client’s part, the Seller may ask the Client for an extension to terms for deliveries and services or a postponement of delivery and completion deadlines by the period of time for which the Client fails to meet his contractual obligations with respect to the Seller.

(4) The Seller is not liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events which were not foreseeable at the time of concluding the contract (e.g., operating disruptions of all kinds, difficulties in procuring materials or power, transport delays, strikes, lawful lockouts, workforce, energy or raw materials shortages, difficulties in procuring necessary official approvals, official measures or non-delivery or incorrect or late delivery by Sellers), for which the Seller is not responsible. As far as such events make delivery or service difficult or impossible for the Seller and the obstruction is not only of temporary duration, the Seller is eligible to withdraw from the contract. In the event of impediments that are of temporary duration, the terms for delivery or service shall be extended or the delivery or service dates shall be postponed by the period of the impediment plus a reasonable start-up period. If as a result of the delay, the Client cannot reasonably be expected to accept the deliveries and services, the Client shall be entitled to withdraw from the contract by way of an immediate written declaration to the Seller.

(5) The Seller shall only be entitled to partial deliveries, if

the partial delivery can be used by the Client within the scope of the contractual intended use,
the delivery of the remaining ordered goods is guaranteed and
the Client does not thereby become subject to significant extra or additional costs (unless the Seller declares that he is prepared to bear such costs).

(6) If the Seller falls behind with a delivery or service or if a delivery or service is impossible for him, whatever the reason may be, then the Seller’s liability is limited to compensation in accordance with section 8 of these General Terms and Conditions of Delivery.

5 Place of performance, shipping, packaging, transfer of risk and acceptance

(1) The place of fulfilment for all obligations arising from the contractual relations is the Seller’s registered head office unless determined otherwise. Should the Seller also be responsible for the installation, the place of fulfilment is the location at which the installation takes place.

(2) The mode of shipping and the packaging are subject to the dutiful discretion of the Seller.

(3) At the latest, the transfer of risk to the Client occurs with the handover of the delivery item (wherein the commencement of the loading process is decisive) to the forwarder, haulier or other third party specified for carrying out the shipping. This shall also apply in those cases in which consignments are supplied in partial deliveries or the Supplier has also agreed to provide additional services (e.g., shipping of installation). If shipping or transfer is delayed due to circumstances the cause of which lies with the Client, the transfer of risks to the Client takes place on the day when the delivery item is ready for shipping and the Client has been informed about this by the Seller.

(4) Storage costs incurred after risk has been transferred will be borne by the Client. In case of storage by the Seller, the storage costs amount to 0.25% of the invoice amount of the delivery item to be stored per week of elapsed time. The right to claim additional storage costs or request proof of lower storage costs remains reserved.

(5) The Seller shall insure the shipment against theft, breakage, transport, fire and water risks only upon explicit request of the Client and at the Client’s costs.

(6) Insofar as an acceptance has to take place, the purchased item is considered to have been accepted when

the delivery and the installation, if installation was ordered, are completed,
the Seller has informed the Client about it together with indicating to the fact of the acceptance fiction of this section 5 (6) and requested acceptance of the performance,
twelve working days have elapsed since the delivery or installation or the Client has started making use of the purchased item (e.g., the equipment supplied has been put into operation) and if in that case, six working days have elapsed since delivery or installation and
the Client refuses to take acceptance of delivery within the stipulated time period because of a reason or reasons besides the ones indicated by the Seller that make the delivered item impossible to use or if the purchased item has been considerably damaged.

6 Warranty, material defects

(1) The warranty period is one year after delivery or, if acceptance is required, one year after acceptance. This term does not apply to compensation claims of the Client that arise from damage to life and limb, or from intentional or grossly negligent breaches of obligations on the part of the Seller or his vicarious agents, which shall each become time-barred in accordance with the legal provisions.

(2) The delivered items have to be accurately inspected immediately after delivery to the Client or determined third parties. The items are deemed to be approved by the Client concerning visible defects or other defects visible in the course of a prompt and thorough examination if the Seller does not receive a written notice of defect within (seven) working days after delivery. With regard to other defects, the delivery items are considered to have been approved by the Client if the notice of defect is not received by the Seller within seven working days after the point in time at which the defect became visible; however, if the defect was already visible at an earlier point in time during normal use, this earlier point in time is decisive for the start of the complaint period. At the Seller’s request, a defective delivery item has to be returned to the Seller carriage free. If the notice of defects is justified, the Seller will reimburse the costs of the cheapest method of dispatch; this does not apply insofar as the costs rise because the delivery item is located somewhere other than the place of use as determined.

(3) In case of material defects of the delivery items, the Seller is initially obliged and entitled to repair them or deliver replacements according to his choice, which is to be made within an appropriate period of time. In the event of failure, i.e., in particular the impossibility, impracticality, refusal or unreasonable delay in reworking delivered goods or delivering replacement goods, the Client shall be entitled to withdraw from the contract or reduce the purchase price appropriately.

(4) If the Seller is responsible for a defect, the Client can demand compensation for damages under the conditions stipulated in section 8.

(5) In case of defects in components of other manufacturers which the Seller cannot remedy for reasons of licensing or factual reasons, then the Seller will, at his choice, make his warranty claims against the manufacturers and Sellers on the Client’s account or assign them to the Client. Warranty claims against the Seller only exist for defects of this kind under other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or is futile, for example, because of insolvency. During the legal dispute, the statute of limitations of the relevant guarantee claims of the Client against the Seller does not apply.

(6) The warranty becomes invalid if the Client modifies the delivery item without the approval of the Seller or allows this to be done by third parties and the remedying of the defect is made impossible or unreasonably harder because of this. In all cases, the Client is required to bear the additional costs of repairing the defect resulting from the alteration.

(7) A delivery of used items agreed in individual cases with the Client is done under exclusion of any warranty for material deficiencies.

7 Property right

(1) In accordance with this section 7, the Seller warrants that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party will immediately inform the other contracting party in writing in the event that claims are made against him due to the infringement of such rights.

(2) In the event that the delivery item infringes a third party industrial property right or copyright, then, according to his choice and at his own costs, the Seller will either alter or exchange the delivery item in such a way that it no longer infringes any third party rights, but so that the delivery item continues to fulfil its contractually agreed functions, or procure the right of use for the Client by concluding a licence contract. If the Seller does not manage to do this within an appropriate period, the Client is entitled to withdraw from the contract or reduce the purchase price appropriately. Any damage claims of the Client shall be subject to the restrictions set out in section 8 of these General Terms and Conditions of Delivery.

(3) If products delivered by the Seller but produced by another manufacturer cause rights violation, the Seller can choose whether to assert his rights against the manufacturer and previous suppliers for the account of the Client or whether he wants to assign his rights to the Client. Claims against the Seller only exist in this case in accordance with this section 7 if the legal enforcement of the above-mentioned claims against the manufacturer and previous supplier was unsuccessful or is futile, for example, because of insolvency.

8 Liability for damages due to negligence

(1) The Seller’s liability for damages, regardless of the legal grounds but in particular due to impossibility, delay, defective or incorrect delivery, contractual infringement, infringement of duties during contract negotiation and action in tort is, insofar as there is a question of blame in each case, limited in accordance with this section 8.

(2) The Seller shall not be liable in the event of simple negligence by the officers of the company, employees or other agents unless an infringement of essential obligations under the contract is involved. Essential contractual obligations include the obligation to timely delivery and installation of the delivery item, the absence of material and legal defects that impair its functionality or usability more than insignificantly as well as consulting, protection and care obligations that are intended to enable the Client the contractual use of the delivery item or are intended to protect the life and limb of the Client’s personnel or to protect the Client’s property from significant damage.

(3) Insofar as the Seller is liable for damages on the grounds of and in accordance with section 8 (2), this liability is limited to damage which the Seller has foreseen when concluding the contract as a possible consequence of a contractual infringement or which, by applying due care and attention, the Seller should have foreseen. Indirect loss and consequential damage due to defects of the delivery item are only liable for compensation if such damage can be typically expected and when the delivery item is used in conformity with its intended purpose.

(4) In the event of liability for simple negligence, the Seller’s obligation to make compensation for property damage and resulting financial losses is limited to an amount of EUR 5,000,000.00 per claim, even if this is a case of infringement of obligations essential to the contract.

(5) The aforementioned exclusions of liability and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Seller.

(6) Insofar as the Seller provides technical information or acts as an adviser and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and with the exclusion of any liability.

(7) The restrictions of this section 8 shall not apply to the Seller’s liability due to intentional acts, his liability for guaranteed quality features, due to damage to life and limb or under the German Product Liability Act (Produkthaftungsgesetz).

9 Retention of title

(1) The goods delivered by the Seller to the Client remain the property of the Seller until full payment has been made of all secured claims. The goods, as well as the goods covered by the retention of title taking their place in accordance with the following provisions, are hereinafter referred to as “reserved goods”.

(2) The Client shall store the reserved goods free of charge on behalf of the Seller.

(3) The Client is entitled to process and sell the reserved goods in the normal course of business until the event of utilisation (para. 8). Pledges and transfers of ownership by way of security are inadmissible.

(4) If the reserved goods are processed by the Client, it is deemed to be on behalf of and for the account of the Seller as the manufacturer and the Seller directly acquire property or – if the processing involves materials provided by a number of owners or the value of the processed goods exceeds that of the reserved goods – joint ownership (fractional ownership) in the items thus created and in the proportion of the value of the goods delivered to the value of the new items. In the event that no such acquisition of ownership on the part of the Seller takes place, the Client henceforth transfers to the Seller his future ownership or, as in the above-mentioned proportion, joint ownership of the newly created item as collateral. If the reserved goods are connected with other items to form a single item and if one of the other items is to be regarded as the main item, the Seller assigns, insofar as the main item belongs to the Seller, joint ownership of the single item to the Client in the proportion specified in sentence 1.

(5) The same applies to other claims arising in lieu of the reserved goods or otherwise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The same applies to other demands arising in lieu of the reserved goods or otherwise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Seller gives the Client revocable authorisation to collect the claims assigned to the Seller in his own name. The Seller may only revoke this collection authorisation in the event of utilisation.

(6) If third parties gain access to the reserved goods, in particular through attachment, the Client shall immediately notify them of the Seller’s ownership and inform the Seller thereof in order to enable the Seller to enforce its ownership rights. Insofar as the third party is not in a position to reimburse the Seller for the legal or out-of-court expenses incurred in this connection, this shall be the responsibility of the Client towards the Seller.

7. The Seller shall release the reserved goods as well as the items or claims replacing them insofar as their value exceeds the amount of the secured claims by more than 50%. The selection of the items to be released thereafter is at the discretion of the Seller.

(8) If the Seller withdraws from the contract in the event of behaviour contrary to the contract on the part of the Client – in particular the default of payment – (event of utilisation), the Seller is entitled to reclaim the return of the reserved goods.

10 Final provisions

(1) If the Client is a merchant, a corporate body under public law or a special fund under public law or if the Client does not have an exclusive place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Client shall be, at the Seller’s discretion, the registered office of the Seller (currently 91166 Georgensgmünd) or the registered office of the Client. However, in these cases, the registered office of the Seller shall be the exclusive place of jurisdiction for legal actions against the Seller. Mandatory legal provisions on exclusive jurisdictions shall remain unaffected by this provision.

(2) The relationship between the Seller and the Client is exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

(3) Insofar the contract or these General Terms and Conditions contain any legal loopholes, then the regulations that would have been agreed upon with respect to the economic goals of the contract and the scope of these General Terms and Conditions, if the escape clauses had been recognised in advance, shall apply and be legally binding.