Terms

General sales, delivery and payment terms and conditions for deliveries of merchandise by ARIANE^®- Aluminium-Systeme GmbH (including machines and tools)

1. Our sales conditions (AGB) apply exclusively; we do not recognize conditions of the customer that are contrary to diverge from our terms and conditions (AGB) unless we have expressly agreed to the validity of these in writing. Our terms and conditions (AGB) also apply when we are aware of conditions of the customer that are contrary to or diverge from our terms and conditions (AGB) and carry out the delivery to the customer without reservations. These terms and conditions (AGB) apply only to entrepreneurs within the intendment of § 310 I BGB (= German Civil Code).

2. Agreements by word of mouth are not valid and require the written form on the part of both parties . Explanations and/or promises by word of mouth of properties are only binding for us when we have confirmed such in writing.

3. The right to make changes to the designs and materials used is reserved, provided that the use in accordance with the contract is not affected.

4. a) If the order is to be qualified as an offer under § 145 BGB, we can accept this within a period of 2 (two) weeks.

4. b) Copyright and property rights to illustrations, drawings, calculations and other documents are reserved. This also applies to such written documents that are designated as confidential.

Before such may be communicated to third parties, the customer requires our express consent in writing.

5. a) Prices are to be understood as referring to the unpacked state ex-works. Packing is charged at cost price. Undamaged crates returned carriage-paid within 4 weeks are credited at 2/3rds. Invoices are issued on the day of delivery. We reserve the right to change our prices accordingly when after the conclusion of the contract reductions or increases in costs occur, especially by reason of tariff agreements or changes in the price of materials. Proof of such will be made available to customers on request.

5. b) The withholding of payment or the offsetting of any counterclaims is only permissible when such have been established in a legally binding manner or are acknowledged.

5. c) If not stated otherwise in the confirmation of the order, the net purchase price (without deductions) is due within 30 days of the invoice date; we grant a discount of 2% for payment in cash within 8 days. The provisions of law apply as regards the consequences of arrears of payment. In particular, interest on arrears of payment is charged at 8% above the base interest rate as stated in § 288 II BGB.

6. a) The start of the delivery time quoted by us assumes the clarification of all technical questions and the timely, due and proper observance of the obligation of the customer. Any delivery date, even if this has been confirmed as binding, may be prolonged by the time for which we are unable to deliver on account of a non-delivery by a supplier or for reasons of force majeure (e.g., strike, etc.) or the buyer is in arrears in regard to an obligation for any legal reason.

6. b) We are liable under the provisions of law if the purchase contract on which the transaction is based is a fixed-term business transaction within the intendment of § 286 II No. 4 BGB or of § 376 HGB (= German Commercial Code). We are also liable under the provisions of law if, as the consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that he has no interest in continuing with the further performance of the contract. Under the provisions of law, we are likewise liable if the delay in delivery is due to an intentional or grossly negligent infringement of the contract for which we are responsible; a fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional infringement of the contract for which we are responsible, our liability for damages is limited to foreseeable, typical damage. Under the provisions of law, we are also liable if the delay in delivery for which we are responsible is due to a tortious breach of an important obligation under the contract; in this case, however, the liability for damages is limited to foreseeable, typical damage. Otherwise, in the case of a delay in delivery, we shall be liable in the form of a lump-sum compensation for delay amounting to 3 % of the value of the shipment for each full week of delay but for not more than 15 % of the value of the shipment. Other legal claims and rights of the customer are reserved. We shall be liable for a smaller sum if we are able to show that the customer has suffered less damage.

6. c) If the customer should delay acceptance or culpably breaches other cooperation obligations, we are entitled to demand compensation for the damage caused to us by this, including any additional expenses. Any other claims are reserved.

6. d) If the prerequisites of Subsection c are in place, the risk of accidental loss or accidental deterioration of the goods purchased is transferred to the customer at the point in time he defaults in taking delivery or is mora debitoris.

7. a) If not stated otherwise in the order confirmation, delivery ex-works is agreed. Delivery is as rail freight unless we choose otherwise. If the buyer specifies another mode of delivery, we are entitled to decide otherwise. Delivery is always at the expense and risk of the buyer and with the exclusion of any liability on our part. If delivery is by our truck, a freight charge of 3% of the value of the goods is made; merchandise to a value of more than 2,500.00 euros are delivered free of carriage charges. In the case of delivery by our truck to other European countries, we deliver merchandise to a value of more than 5,000.00 euros free of carriage charges to the German frontier, duty unpaid.

7. b) Section 5 a) applies for the return of packing material.

7. c) The goods are deemed delivered as soon as they are passed to a third party. If we transport the goods ourselves, the delivery is deemed to have been carried out as soon as the goods leave the Works and the buyer has been advised of this.

7. d) If the customer so wishes, we will have the shipment covered by a transport insurance; the customer bears the charges incurred by this.

7. e) Drafts, designs or improvements suggested by the customer are subject to copyright protection. The customer bears the full responsibility for the non-infringement of the rights of third parties through the use of the models submitted by him or manufactured according to his specification.

8. a) We reserve retention of ownership of the merchandise purchased until all payments from the delivery contract have been received. In the case of breach of contract by the customer, in particular if there are arrears of payment, we are entitled to reclaim the merchandise. The reclaiming of the merchandise by us amounts to a cancellation of the contract. After the reclaiming of the merchandise, we are entitled to sell the same; the proceeds from the sale are to be set off against the debt of the customer less reasonable selling expenses.

8. b) The processing or transformation by the buyer of the merchandise purchased is always carried out on our behalf. If the merchandise is processed with other items not belonging to us, we acquire joint ownership of the new item in proportion to the value of the other items processed at the time of processing. The same applies otherwise to the item resulting from the processing as for the merchandise supplied under reservation. If the item purchased is mixed inseparably with other items not belonging to us, we acquire joint ownership of the new item in proportion to the value of the other items processed at the time they are mixed. If the mixing is carried out in such a manner that the item of the customer is to be regarded as the principal item, it is deemed as agreed that the customer transfers joint ownership to us in a proportionate manner. The customer shall store for us the sole property or joint property which has resulted in this manner.

8. c) The buyer undertakes to maintain in a proper state and at his expense merchandise subject to reservation of title and other merchandise given as security and to insure such against fire, theft and burglary with the proviso that the rights from the insurance are assigned to us.

8. d) The customer is entitled to sell the merchandise in the regular course of business; however, he assigns to us already now all claims amounting to the final sum of our claim which he has against his customers or third parties from the re-sale of the merchandise, this independently of whether the merchandise was sold before or after processing. The customer is authorized to collect this claim also after the assignment. This does not affect our right to collect the claim ourselves. We undertake, however, not to collect the claim as long as the customer meets his payment obligations from the proceeds obtained, does not fall into arrears of payment and in particular does not make any application for the opening of composition or insolvency proceedings or for the suspension of payments. If this is the case, however, we can demand that the customer advises us of the claims assigned and of the debtors in question, provides all the necessary information for the collection of such, makes available the corresponding documents and informs the debtors (third parties) of the assignment. The customer shall also assign to us the claim for the securing of our claims against him which are created against a third party by the combination of the purchased merchandise with real property.

8. e) The buyer must advise us without delay of any impairment or endangering of our rights and at his expense initiate everything necessary to avoid this.

8. f) If the value of the securities exceeds our claims by more than 10 %, we are obliged at the request of the buyer to release securities at our discretion.

9. a) The standard condition of the merchandise is determined by the details communicated by us or by the technical documents submitted. The standard for freedom from defects is the state of the art (e.g., DIN norms, etc.) for comparable merchandise of the type of the purchase item at the conclusion of the purchase contract. Slight divergences are not considered as divergences in the actual state from the standard condition. Slight, technically unavoidable divergences in quality, colour, width, weight, equipment or design may not be the subject of complaint and are not regarded as defects in the sense of § 443 BGB. This also applies to the usual variations in the trade unless the promise of a true-to-sample shipment has been promised by us. Dimensions, weights and static values are approximate. The right to make expedient modifications and improvements in design and construction is reserved.

9. b) The buyer must inspect the purchased merchandise without delay, i.e., at the latest within two days of acceptance or within eight days of the pickup notification. If a defect is found, he must notify us without delay item. If he does not notify us, the merchandise is deemed as approved unless it is a defect that could not be identified during the inspection. If such a defect is found later, the notification must be made without delay after the discovery of such; otherwise, the merchandise is considered to be approved, also in consideration of this defect. This does not apply in the cases of § 444 BGB.

9. c) In the case of a justified notification of defects, the buyer may demand supplementary performance. We will eliminate the defect at our discretion or supply a defect-free replacement. If the attempt by us to eliminate a defect fails three times or if it is associated with unreasonable expense, the buyer may demand the cancellation of the contract or the reduction of the payment at his discretion. Even after a third unsuccessful attempt, a rectification is not considered as a final failure if something else is found, especially in regard to the nature of the item or defect or other circumstances that complicate the rectification. A warranty is given on the basis of the contract and up to the expiry of the liability for defects in parts installed during the rectification. The parts replaced become our property.

9. d) The buyer may lodge claims for rectification with us. If the buyer opts for rectification, we determine the manner and place of rectification. If the contract is cancelled, the merchandise received is returned or, with the reduction of the remuneration, the additional sum paid by the buyer is reimbursed by us and the merchandise received is returned. If, contrary to the rules of proper management, the buyer has not utilised the merchandise, he is obliged to compensate us.

9. e) The liability for defects lapses if, after the discovery of the defect, the merchandise is modified or repaired by the buyer or by any other person except us. Emergencies and such cases in which the modified or repair clearly has no influence on the defect are excepted from this. The liability for defects also lapses if the buyer has not observed the rules concerning the handling, maintenance and care of the merchandise.

9. f) For unjustified claims of defects demanding a comprehensive examination, the costs of the necessary tests will be charged to the buyer. If it is apparent after the usual check for defects that a more comprehensive examination is necessary, we will inform the buyer to obtain his consent to this.

9. g) For defects in quality, the limitation period is 5 years after acceptance for permanently installed components unless the applicability of VOB/B has been agreed. Unless it is a question of items used for a structure fabricated and/or sold by the seller, the limitation period is six months. The limitation periods do not apply in the case of a defect wilfully concealed by the seller.

9. h) We are liable under the provisions of law if the customer claims damages based on intent or gross negligence including intent or gross negligence on the part of our representatives or vicarious agents. If a wilful violation of the contract by us cannot be shown, the liability for damage is limited to foreseeable and typical damage.

9. i) We are liable under the provisions of law if we culpably breach an important contractual obligation; in this case, however, the liability for damage is limited to foreseeable and typical damage.

9. j) If the customer is entitled to claim damages instead of rectification, our liability for damages, also in the context of Subsection c, is limited to foreseeable and typical damage.

9. k) The liability for damages resulting from culpable injury to life, body or health is not affected; this also applies to the mandatory liability under the German Product Liability Act.

9. l) Liability is excluded in the absence of any provisions to the contrary above.

9. m) The limitation period in the case of a delivery regress under §§ 478, 479 BGB is not affected.

10. a) Any other liability for damages than that designated in Section 9 – without regard to the legal nature of the claim lodged – is excluded. This applies in particular to claims for damages arising from faults made at the closing of a contract, the non-observance of other obligations or tortious claims for damages under § 823 BGB.

10. b) The limitation under Subsection a also applies if instead of a claim for damages the customer requests compensation for useless expenses rather than rectification..

10. c) If the liability for damages is excluded or limited in regard to us, this also applies in respect of the liability for personal injury ability for damages of our staff, employees, representatives and vicarious agents.

11. a) Our registered office at Lennestadt is the place of jurisdiction; we have the right, however, to sue the customer before the court at his place of residence.

11. b) The law of the Federal Republic of Germany applies; the applicability of the UN law on international sales is excluded.

11. c) If not stated otherwise in the order confirmation, our registered office is the place of performance.

The invalidity of an individual provision does not affect the validity of the other provisions.