Standard Terms and Conditions of the company Rewitec for Commercial Customers/Entrepreneurs; status as of September 2010

Allgemeine Geschäftsbedingungen der Fa. Rewitec für gewerbliche Kunden/Unternehmer Stand September 2010

Section 1 General – Scope

Any deliveries, services and offers are solely made or rendered on the basis of these Standard Terms and Conditions. They are integral part of any agreement which Rewitec closes with its contractual partners (hereinafter referred to as “contractors”) on any of the goods or services offered by Rewitec. They shall apply to any current and future deliveries, services or offers for the contractor, even if such have not been repeatedly and separately agreed.
Standard terms of the contractor or of third parties shall not apply, even if Rewitec did not expressly object to their validity in any individual case. Even if Rewitec refers to a letter which contains standard terms and conditions of the contractor or any third party, or if such letter refers to such standard terms, this does not imply Rewitec’s agreement with the validity of such standard terms.

Section 2 Offers and Closing of Agreements

Any of Rewitec’s offers are subject to change and are not binding, provided they are not expressly marked as binding or refer to a fixed acceptance period. Any orders or commissions may be accepted by Rewitec within fourteen days after receipt.
Authoritative for the legal relationship between Rewitec and the contractor is solely the purchase agreement closed between them, including the present Standard Delivery Terms. This agreement contains in full any arrangements made between the contractual parties relating to the subject matter. Any oral representations made by Rewitec prior to the closing of this agreement are not binding, and any oral arrangements between the contractual parties shall be replaced by the written contract, provided they do not expressly state that they shall continue to be binding.
Any amendments to or changes of the agreements made, including the present Standard Terms and Conditions, require written form to become effective. Except for managing directors or procurators, Rewitec’s employees shall not be entitled to agree to any oral arrangements deviating from the present provisions. To observe the written form requirement, it shall be sufficient to transmit them by telefax. However, transmission by other means of telecommunication, in particular by E-mail, shall not be sufficient.
Any information of Rewitec on the subject matter of delivery or service (e. g. weight, measurement, utility features, loading capacity, tolerances and technical data) as well as drawings (e. g. drawings and pictures) are only approximate features, provided however, the use for the contractually agreed purpose does not require exact data. They are no warranted characteristic features, but descriptions or indications of delivery or service only. Trade-typical deviations and deviations basing on legal provisions, or those which are technical improvements, as well as replacement of components by equivalent parts shall be admitted as far as they do not impair the use for the contractually agreed purpose.
Rewitec reserves the right of ownership or copyright in any of its offers and preliminary estimates of costs as well as in any drawings, pictures, calculations, brochures, catalogues, models, tools and other records and tools provided to the contractor. The contractor must not make available, disclose, use or reproduce these items to any third party without express consent by Rewitec, neither the items themselves nor their contents. On Rewitec’s request, the contractor has to return these items in full to Rewitec and has to destroy any possible copies if they are not required in ordinary course of business anymore, or if negotiations did not lead to closing of an agreement.

Section 3 Prices and Payments

Any prices shall apply to the scope of services and deliveries contained in the order confirmation. Any additional or special services shall be calculated separately. Any prices are in Euros ex works, plus packaging, plus statutory VAT, and with export deliveries plus customs as well as fees and other public charges.
If the agreed prices base on Rewitec’s price lists and if delivery is to take place more than four months after closing of contract, those of Rewitec’s list prices shall apply as applicable at the date of delivery (each minus agreed percentage or fixed discount).
Invoices shall be paid within fourteen days without deduction, provided nothing on the contrary was agreed in writing. Authoritative shall be the date of receipt by Rewitec. Cheques shall only be considered as payment after their honouring. Should the contractor not pay upon the payments being due and payable, the outstanding balances shall be subject to interest starting from the date of them being due and payable in an amount of a statutory interest rate pursuant to section 288 II BGB [German Civil Code]. Claiming of higher interest rate and other damages claims in case of delayed payment remain unaffected.
Set-off with counter-claims of the contractor or retention of payments because of such claims shall only be admitted if such counter-claims are undisputed or have been found final and binding.
Rewitec shall be entitled to make deliveries and render services only against prepayment or security payment if Rewitec after closing of the contract learns about circumstances which considerably diminish the contractor’s creditworthiness and which might jeopardize a payment of Rewitec’s outstanding payments by the contractor relating to the respective contractual relationship (including other individual orders arising from the same framework agreement).

Section 4 Delivery and Delivery Date

Deliveries are ex works.
Any deadlines and dates of deliveries and services offered by Rewitec are only approximate information, provided no fixed deadline or date was expressly represented or agreed. If shipment was agreed, any delivery deadlines and dates only refer to the date of surrender to the forwarder, carrier or any other third party entrusted with such transport.
Rewitec may – regardless of its rights because of contractor’s delay – request from the contractor an extension of delivery and service deadlines, or request postponement of such delivery and service deadlines by the same period of time in which the contractor did not fulfil its own contractual obligations toward Rewitec.
Rewitec shall not be liable for impossibility of delivery or for delays of deliveries as far as these are due to force majeure or other events not foreseeable at the time of closing of the contract (e. g. operational defects of any kind, difficulties with material and energy procurement, transport delays, strike, lawful lockouts, lack of staff, energy or raw goods, difficulties with procurement of necessary authority permits, authority measures, or failing, incorrect or late deliveries by suppliers) and for which Rewitec is not responsible. If those events considerably impair delivery or service by Rewitec or even make it impossible, and if such impairment is not only temporary, Rewitec shall be entitled to withdraw from the contract. Regarding impediments of only temporary nature, delivery and service deadlines shall be extended or postponed by the period of impediment plus an appropriate start-up period. If the contractor cannot be expected to accept a delivery or service due to such delay, he may notify Rewitec immediately in writing about his withdrawal from the contract.
Rewitec is entitled to partial deliveries only if:
- partial delivery is useful for the contractor in the framework of the contractual purpose;
- delivery of the remaining goods is guaranteed, and the contractor does not incur any considerable additional work or costs (or Rewitec accepts to bear such costs);
If Rewitec is in delay with deliveries or services, or if it is impossible for Rewitec to deliver or render a service, for whatever reason, Rewitec’s liability shall be limited to the amount of damages set out in section 8 of these Standard Delivery Terms.

Section 5 Place of Performance, Shipment, Packaging, Passing of Risks, Acceptance

Place of performance of any obligations under the contractual relationship shall be D-35633 Lahnau, provided nothing was agreed on the contrary. Should Rewitec also owe installation, place of performance shall then be the place where installation is to take place.
Type of shipment and packaging are subject to Rewitec’s rightful discretion.
Any risk shall pass to the contractor upon surrender of the delivery goods (authoritative is commencement of shipment procedure) to the forwarder, carrier or any other third party entrusted with such transport. The same applies in case of partial delivery or if Rewitec also took on to render other services (e. g. shipment or installation). If shipment or surrender are delayed due to circumstances for whose cause the contractor is responsible, the risk shall pass to the contractor on that date on which the good to be delivered is ready for delivery, and Rewitec notified the contractor abut this fact.
Any warehouse charges after passing of risks are to be borne by the contractor. Upon storing with Rewitec, warehousing costs are [0.25] % of the invoice amount of the stored goods per weeks elapsed. Claiming and proof of other or lower warehouse charges shall be reserved.
Any goods shall only be insured by Rewitec against theft, breakage, transport, fire and water damage or other insurable risks upon express request by the contractor and on his own account.
As far as acceptance is required, any goods are considered accepted if:
- delivery is completed, and, if installation is owed by Rewitec, too, if installation is completed;
- Rewitec informed the contractor about it together with indicating to the fact of the acceptance fiction of this section 5 (6) and requested acceptance of the performance;
- 12 working days have elapsed since delivery or installation, or if the contractor started to use the delivered item (e. g. took the delivered plant into operation) and if in that case 6 working days have elapsed since delivery or installation;
- the contractor failed to accept within this period of time for a different reason than a defect notified toward Rewitec which makes a use of the item impossible or considerably impairs such use.

Section 6 Warranty, Defects

Warranty period shall be one year starting from delivery or, if acceptance is required, from acceptance.
Any goods delivered are to be inspected immediately and diligently after receipt by the contractor or by a third party named by him. They are considered accepted if Rewitec does not receive a written defect notice relating to obvious defects or defects which would have been obvious upon immediate and diligent inspection, within seven working days after delivery of the goods, or within seven days after detection of a defect, or at any other date on which the defect was detected by the contractor in the course of normal use of the item without closer inspection. Upon Rewitec’s request, the respective item is to be returned to Rewitec, freight prepaid. In case of justified claims, Rewitec shall reimburse the costs of the most cost-effective shipment; this however, shall not apply if costs are increased because the item is located in a place different from the place of the intended use.
In case of defects of the goods delivered, Rewitec shall be entitled to choose between either remedying the defect or delivery of a replacement item, which choice has to be made within a reasonable deadline. In case of failure, i. e. impossibility, unacceptability, refusal or unreasonable delay of remedying the defect or delivery of a replacement item, the contractor may withdraw from the contract or may reasonably reduce the purchase price.
If a defect is due to Rewitec’s failure, the contractor may claim damages according to the requirements of section 8.
In case of defects of components made by other manufacturers, which cannot be remedied by Rewitec due to licence-related or other reasons, Rewitec shall have the choice to either claim warranty rights against this manufacturer and supplier on the contractor’s account, or assign these rights to the contractor. Warranty claims against Rewitec in case of such defects only exist, subject to other requirements and in accordance with these Standard Delivery Terms, if litigations or proceedings before court against the manufacturer and supplier regarding these claims have been unsuccessful, or if they have no prospect of success due to e. g. insolvency. During pending litigations, period of limitation relating to these warranty claims of the contractor against Rewitec shall be barred.
There shall be no warranty if the contractor without Rewitec’s consent changes the delivered item or has it changed by any third party, and if remedying of defects is thus rendered impossible or is unacceptably impaired. In any case, the contractor has to bear any additional costs of remedy incurred by such change.
A possible delivery of used goods agreed with the contractor, shall be done in any individual case with exclusion of any warranty for defects.

Section 7 Protection Rights

Pursuant to section 7, Rewitec guarantees that the delivered goods are free from any commercial protective rights or copyrights owned by any third party. Any contractor shall immediately notify the other contractual partner in writing if someone claims a violation of such rights toward him.
In case a delivered item violates commercial protective laws or copyrights of any third party, Rewitec shall in its discretion and on its own account change or exchange the delivered item in a way that no third party rights are violated any longer, but the delivered item still possesses the agreed functions, or Rewitec shall procure for the contractor utilization rights by closing a respective licence agreement. If Rewitec is unable to manage this within a reasonable period of time, the contractor shall be entitled to withdraw from the contract or to diminish the purchase price appropriately. Possible damages claims of the contractor are subject to limitations contained in section 8 of these Standard Delivery Terms.
In case of legal violations of products delivered by Rewitec which are made by other manufacturers, Rewitec will in its discretion file claims against these manufacturers and pre-suppliers on the contractor’s account, or Rewitec will assign these rights to the contractor. In this case, any claims against Rewitec only exist, subject to other requirements and in accordance with these Standard Delivery Terms, if litigations or proceedings before court against the manufacturer and pre-supplier regarding these claims have been unsuccessful, or if they have no prospect of success due to e. g. insolvency.

Section 8 Liability for Damages Because of Fault

Any liability of Rewitec for damages, for whatever legal reason, in particular because of impossibility, delay, defected or wrong delivery, violation of contract, violation of obligations during negotiations, and wrongful acts, as far as they are subject to fault, shall be limited pursuant to this section 8.
Rewitec shall not be liable in case of ordinary negligence of its organs, statutory representatives, employees or other agents as far as no violation of major contractual obligations is involved. Major contractual obligations are timely delivery and installation of delivered goods which are free from major defects as well as consulting, protection and care obligations which are to enable the contractor to use the delivered item according to the agreed purpose, or which are to protect health and life of the contractor’s staff or to protect its property from major damage.
As far as Rewitec shall be liable pursuant to section 8 (2) for damages, such liability shall be limited to damages that have been or could have been foreseen, when applying usual diligence by Rewitec, as possible consequences of violation of contractual obligations upon closing the contract. Indirect or consequential damages which are consequences of defects of the delivered good shall only be replaceable if such damages could have been expected to occur upon use according to the intended purpose.
In case of liability for ordinary negligence, Rewitec’s liability for damages and other damages to assets resulting from that shall be limited to EUR 5,000,000.- per case (according to current insurance cover of its product liability insurance or general liability insurance), even if violation of major contractual obligations is involved.
The above exclusions and limitations of liability shall apply in the same extent to any of Rewitec’s organs, statutory representatives, employees and other agents.
As far as Rewitec offers technical advice or acts as a consultant, and in the extent in which these advices or consultations are not included in the contractual agreed and owed scope of performance, such services are offered free of charge and with any liability excluded.
The limitations of this section 8 shall not apply to Rewitec’s liability for wilful misconduct, for warranted characteristic features, damage to life, body or health, or in accordance with product liability laws.

Section 9 Reservation of Ownership

We reserve the right of ownership of the goods delivered until full payment of the purchase price for these goods. During an existing reservation of ownership the buyer must not sell or in any other way dispose of the ownership of these goods (hereinafter referred to as “reserved goods”).
In case of acting of third parties – in particular bailiffs – with respect to reserved goods, the buyer shall inform such third party of our property rights, and he shall immediately inform us in order to enable us to enforce our property rights.
In case of violations of agreements by the buyer, in particular delayed payments, we shall be entitled to claim surrender of the reserved goods if we chose to withdraw from the agreement.

Section 10 Final Provisions

Legal venue for any possible disputes arising from the business relationship between Rewitec and the contractor shall be, in Rewitec’s discretion, Lahnau or the contractor’s business seat. Lahnau shall be exclusive legal venue in case of litigations and proceedings against Rewitec. Obligatory statutory provisions on exclusive place of jurisdiction remain unaffected.
Any relations between Rewitec and the contractor are exclusively subject to the laws of the Federal Republic of Germany. The United Nation’s Treaty on Contracts on International Sale of Goods dated 11 April 1980 (CISG) shall not apply.
Should this agreement or these Standard Delivery Terms contain any legal gaps, those legally effective regulations shall considered agreed to fill these gaps which the contractual parties would have agreed with view of the economic goal of the agreement and the purpose of these Standard Delivery Terms had they known about this legal gap.
Should one or more than one provision be, partly or wholly, invalid or ineffective, the validity of the remaining provisions shall not be affected. Such ineffective clause shall be replaced retroactively by a provision of similar content which comes as close as possible to the purpose of the original provision.

Note:

The contractor acknowledges that Rewitec may store data from the contractual relationship pursuant to section 28 Federal Data Protection Act for the purpose of data processing, and Rewitec reserves the right to transmit such data to third parties (e. g. insurance companies) if necessary for a fulfilment of contract.