General Terms of Supply   AL-KO THERM GMBH · Maschinenfabrik · Jettingen-Scheppach   I. General 1. These General Terms of Supply apply to all contracts, supplies and other services, including those in the future, provided they are not amended or excluded with our express written approval. Customers' Terms of Purchase are only effective if we recognize them in writing for the contract concerned. Our terms are deemed recognized no later than on acceptance of our delivery or service. II. Tender 1. Our tenders are without obligation, unless anything to the contrary has been agreed in writing. 2. The diagrams, drawings, brochures, advertising leaflets, listings, etc. relating to our goods and the data they contain, e.g. on performance, operating costs, technical characteristics and weight, are only approximate, unless expressly stated to be binding. 3. Even after dispatch of an acknowledgement of order, the right is expressly reserved to make design changes and deviations from brochure and catalogue data, provided that this does not involve any alterations of the price and/or major functional data or supply period and provided that the customer can be reasonably expected to accept such changes or deviations. 4. We reserve ownership rights and copyrights to cost estimates, drawings and other material; they are not to be duplicated or made accessible to third parties without our consent. IIa. Secrecy 1. The parties to the contract undertake to treat as business secrets all non-evident commercial and technical particulars of which they learn as a result of business relations. 2. Drawings, models, templates, samples and other items must not be supplied to unauthorized third parties or made available to the same in any other way. Such items shall only be duplicated as far as operationally necessary and permitted by copyright regulations. III. Order 1. Our written acknowledgement of an order is the criterion for the scope of supplies. Any objections to an order acknowledgement must be received by us in writing immediately, and not later than 8 days after the date of issue of said acknowledgement. Later objections will not be accepted, unless anything to the contrary has been expressly agreed in writing. 2. Statements made by our agents and travellers do not take effect until we have confirmed them in writing. 3. On non-performance of the purchase agreement, we are entitled to claim either the damages actually incurred or, without provision of evidence, damages amounting to 25% of the agreed purchase price, provided the customer does not prove that damages were lower. 4. Orders on call are to be called off by the customer within no more than 6 months - calculated from the date of acknowledgement of order. If no call, stating the required particulars, is duly made within a reasonable extension period which we grant the customer, we have the right, at our own discretion, to either dispatch supplies at the price applying on the day of supply without any call being made or to claim compensation for non-performance or to rescind the outstanding part of the contract. IV. Prices, Packaging 1. If nothing has been agreed to the contrary, prices apply ex works, excluding packaging, freight and duty. To the prices will be added value-added tax at the statutory rate effective at the time. Packaging will be charged at cost price and not taken back. 2. The agreed price is based on current material costs and wages. If they change before supply of the order, the price will be altered in proportion to the percentage change of material costs, wages, energy, etc. The status of production when the changes to material and wages occur will be taken into consideration. V. Terms of Payment 1. If nothing is agreed to the contrary, payment must be made to us in cash without any deductions and free to the payment office, this to be purely net within 30 days of the date of the invoice. 2. All payments must be made to us alone. Payments made to agents without any written power of collection do not constitute a release from the payment obligation to us. 3. Cheques and bills are not deemed to be payments until they have been honoured. Discount charges are payable by the customer. We will only accept discountable and duly tax-cleared bills in payment if this has been expressly agreed. No cash discount will be allowed for payment by bill or in cash against acceptor's bill. Bills are accepted without any warranty of proper presentation and protest. 4. The customer is not entitled to withhold the purchase price because of counter-claims not resulting from this contractual relationship. Customers only hold an offsetting right if the claim is undisputed, a decision is imminent or the claim has been confirmed in a legally final form. 5. If the period for payment is exceeded, we are entitled to charge interest on arrears without giving notice of default. Such interest will be equal to customary bank interest on loans but no less than 5% above the then applicable basic interest rate of the German Bundesbank. 6. Without any allowance being made for the term of discounted bills, the purchase price becomes payable immediately: a) as soon as any event occurs (e.g. payment default, unfavourable credit information, compulsory execution measures, etc.) as a result of which the granting of credit appears dubious, b) if the customer pledges to third parties our outstanding receivables or goods to which our reservation of ownership applies or assigns the same in security. If a purchase price becomes payable immediately, we have the right to refuse to supply any outstanding consignments if they are not paid in advance, to require protection of our claims, to rescind the contract after granting a reasonable period of extension or to claim damages for non-performance. In addition, we also have the right to prohibit any further sales by the customer of the goods supplied subject to reservation of ownership and to repossess such goods. Redemption of goods only constitutes a rescission of contract if we make an express written statement to this effect. The costs we incur as a result of redeeming goods are payable by the customer. The customer cannot request delivery of goods redeemed without a written statement of rescission until the purchase price and all costs have been paid. VI. Supply Period 1. The quoted supply periods and dates are without commitment for us, unless we have provided a written undertaking. In such a case, they will apply subject to correct and punctual delivery to us. We do not give any warranty of transportation in due time. 2. Supply periods start on dispatch of the acknowledgement of order but not before complete clarification of all details of the order and provision of the documents, licences and approvals for procurement of which the customer is responsible and not before receipt of an agreed advance payment or opening of a letter of credit. 3. Supply periods and dates relate to the time of provision or dispatch ex works or warehouse. They are deemed to have been observed when readiness for dispatch is reported if goods cannot be dispatched in due time through no fault of ours. We are not liable for delayed performance or failure to perform caused by our sub-suppliers. The supply periods will be extended - without prejudice to our rights resulting from default by the customer - by the period by which the customer is in default with its obligations to us from this contract or other contracts. This applies accordingly to supply dates. 4. We shall only be in default if, for reasons for which we are responsible, we fail to render due performance within a reasonable extension period, following a written reminder from the customer. If the customer suffers damages due to default for which we are responsible, said customer has the right, with exclusion of further claims, to claim compensation for default. For every full week of the delay, this compensation for default will amount to 0.25% - but totalling no more than 5% altogether - of the value of the part of the total order which cannot be used in due time or in a proper manner because of the delay. The customer's claims based on gross negligence and intent are not prejudiced. 5. Our observance of the supply period is subject to on-time and due performance of contractual obligations by the customer, especially fulfilment of said customer's payment obligations. VIa. Force Majeure 1. In the event of force majeure and other unforeseeable and/or extraordinary circumstances and/or circumstances for which we are not to blame, we are entitled to postpone delivery by the length of the obstruction and a reasonable start-up period or to rescind the contract, either in whole or in part, relating to the part of the order not yet performed. Equivalent to force majeure are also strike, lock-out, mobilization, war, blockade, import or export ban, lack of raw materials or fuel, fire, energy supply difficulties, traffic blocks, disturbance of operations or transportation and other circumstances for which we are not responsible, regardless of whether they occur in our plant or those of sub-suppliers or their prior suppliers. We can only invoke the said circumstances if we notify the customer of the same immediately. 2. The circumstances identified above are not our responsibility even if they occur when we are already in default. The customer can require us to state whether we will supply within a reasonable period or wish to rescind the contract. If we fail to make such a statement within a reasonable period, the customer can then, for his part, rescind the contract relating to the part not yet performed. 3. If, due to the circumstances identified above, supply or rendering of the service becomes impossible or cannot reasonably be expected, we will be released from our supply obligation. VII. Installation or Erection Provided that nothing to the contrary has been agreed in writing, installation or erection at the place of application is not included in the scope of supply. VIII. Shipment and Passage of Risk 1. Provided that nothing to the contrary has been agreed in writing, we are liable to supply the goods ex works. Goods reported to be ready for dispatch must be called off or collected immediately, within no more 8 days. If this is not done, we have the right to dispatch the material at our discretion or to exercise the rights set forth under Section IV, para. 2. 2. If we have agreed to perform delivery (sale to destination), selection of the carrier, means of transportation and route are at our discretion, provided no other agreement has been made. The risk passes to the customer when the goods are loaded, even if partial deliveries are made or we have undertaken to render other services, such as costs of shipment or delivery and installation or erection. The unloading of the goods is the responsibility of the customer and payable by the same. By request, we will insure the shipment against theft, breakage, transportation damage, fire damage and water damage and against other insurable risks, this being in the name and for the account of the customer. 3. We make every effort to supply or ship the goods together but have the right to make such partial deliveries as the customer can be reasonably expected to accept. Each partial consignment is deemed an independent transaction. 4. If loading or carriage of the goods is delayed for a reason for which we are not responsible, we or our authorized representatives have the right, but are not under any obligation, to store the goods at our discretion - if necessary outdoors - at the costs and risk of the customer and with exclusion of any liability on our part, to take all action considered necessary to preserve the goods and to bill the goods as if they had been delivered. In the event of a delay in accepting performance, we are entitled to charge customary storage fees. IX. Defects and Warranty 1. The decisive factor for establishing the contractual condition of the goods is the time when they leave our works. The supplied item must be inspected immediately on receipt. Notices of defects must be submitted immediately and we must have received them in writing no later than within two weeks of receipt of the goods by the customer. This applies in particular to defects in external quality and relating to the completeness of the consignment. In addition, the recipient must report any transportation damage to the carrier immediately after receipt of the goods and ensure that such a report is certified on the letter of consignment, with simultaneous registration of damages claims. If such certification is not obtained, compensation claims will not be recognized. 2. Other defects which could not have been found immediately even on careful inspection must be reported in writing without delay, no later than after discovery of each fault, and any processing must be discontinued immediately. 3. The customer's right to submit claims relating to defects is subject in all cases to a time limitation of 6 months, calculated from the time of due reporting of the defect, but said right cannot expire before the end of the warranty period. 4. The warranty period starts on the date of the invoice but not before the date of passage of risk to the customer. Expiration of the warranty period is not suspended by reworking or substitute supply. 5. We give a warranty of 12 months for defects to goods including any lack of guaranteed qualities. For reworking and substitute supply, the warranty is valid for 6 months but does not expire before the end of the original warranty for the item supplied. Qualities are only deemed guaranteed if they are identified as such in our tenders or acknowledgements of orders. 6. For outsourced products, our liability is initially limited to assignment of the liability claims which we hold against the supplier of the outsourced product. We undertake both to provide the customer with all information required to prosecute claims and to supply appropriate documents. This does not apply in cases in which we ourselves have caused the defects. 7. Our warranty obligation is subject to the requirement that the goods we supply are properly installed or erected by a recognized specialist company - respecting relevant standards and recognized technical rules - and are used in exact compliance with our instructions. Our warranty obligation ceases to apply if the defect has a causal link with improper alteration, processing or other treatment. We will not accept any liability for damage resulting from use-related wear on parts subject to natural wear and tear or from excess strain, poor servicing, violence, failure to observe our operating instructions, incorrect or wrong operation or circumstances outside normal operating conditions. 8. Our warranty obligation also requires the customer to give an adequately specific written description of any defect which may emerge and to set a reasonable period for reworking or substitute supply. We must be permitted to inspect the defect on site, either ourselves or by sending a representative. By agreement, the customer must allow us the necessary time and give us the necessary opportunity to perform all repair work and substitute supply work which we consider necessary at our reasonable discretion and must provide us with assistants if requested to do so. 9. Only in urgent cases in which operational safety is at risk - of which cases we must be notified immediately- or if we are in default with remedying the defect does the customer have the right to remedy the defect himself or have it remedied by third parties and to require us to render reasonable compensation for his costs. 10. The warranty which we provide only covers such parts as are proved to have become defective as a result of material or fabrication faults and is limited to reworking or substitute supply. 11. If reworking is impossible or would require an unreasonable amount of expenditure or work or if the defect has still not been remedied after two reworking attempts have been made or a substitute supplied twice and the customer has set a reasonable extension period with a threat of refusal, said customer can claim abatement of the purchase price or cancellation of sale. Said customer only holds damages claims in the event of intent or gross negligence. 12. Any liability for damages not incurred to the supplied item itself is ruled out. This also applies to consequential damages of all kinds, provided we are not guilty of intent or gross negligence and guarantees of qualities do not cover the risk of consequential damages related to a defect. This exclusion of liability does not apply in the cases in which we are liable under the Product Liability Act for personal injuries and property damage to privately used items in the event of defects in goods. X. Other Claims 1. If nothing to the contrary is specified above, all claims, especially those relating to a product fault for which we are responsible, are excluded if based on illegal action, positive breach of contract and fault when making the contract or on impossibility and inability of performance, provided we are not guilty of intent or gross negligence. Claims of obligees under the Product Liability Act are not prejudiced by the above. 2. Claims relating to outsourced products are expressly excluded, especially if they relate to a product fault for which the manufacturer is responsible. To this extent, we assign to the customer all claims which we hold against the appropriate manufacturer and/or sub-supplier. XI. Liability of Vicarious Agents To the extent to which our liability is excluded or limited, this also applies to our vicarious agents. XII. Reservation of Ownership 1. We reserve the title to all goods supplied until complete payment of all our receivables and settlement of any current account balance produced to the debit of the customer, provided that we are entitled to such receivables and/or settlement now or in the future for any legal reason whatsoever. This also applies when the remuneration for certain goods consignments identified by the customer has been paid. 2. Resellers may only resell the supplied goods in the course of due business. By way of security, the reseller assigns to us the receivables resulting from resale of our goods which are subject to reservation of ownership, this being until payment of all our receivables from the business relationship and settlement of any current account balance produced to the debit of said reseller. The fitting in properties or buildings of the goods subject to reservation of ownership or use of the same for performance of any other works contracts or works supply contracts by the customer constitutes the equivalent of resale. 3. Even after assignment, the customer is authorized to collect such receivables until such authorization is revoked. Our power to collect such receivables ourselves is not affected thereby. It can, for example, be exercised if the customer fails to meet any terms of payment. At our request, the customer shall provide all information necessary for collection and supply us with the appropriate documents without delay. Said customer shall also give the secondary debtor written notification of assignment. In the event of compulsory execution measures by third parties relating to our securing rights, the customer must inform said parties of our rights and notify us immediately. Said customer must pay the costs of measures to remedy such compulsory execution, in particular the costs of intervention proceedings, if they cannot be collected from the opposing party. The customer may only assign our receivables - including sale of receivables to factoring banks - subject to our prior written consent. 4. Treatment and processing of the goods subject to reservation of ownership are performed for us as the manufacturers as defined in art. 950 of the Civil Code, without placing us under any obligations. The processed goods are deemed to be goods subject to reservation of ownership as defined in paragraph 1. Any acquisition of title by the customer under art. 950 of the Civil Code is ruled out. If the goods subject to reservation of ownership are processed, combined or mixed with other goods by the customer, we hold co-ownership of the new item in the proportion of the invoiced value of the goods subject to reservation of ownership to the invoiced value of the other goods used. For the event that our title is terminated by combining or mixing, the customer assigns to us now at the present time the ownership rights which he holds to the new stock or item, this being to the amount of the invoiced value of the goods subject to reservation of ownership, and will store said goods for us free of charge. The co-ownership rights created in this way are deemed to be goods subject to the reservation of ownership as defined in paragraph 1. 5. By way of security, the customer assigns to us the receivables resulting from resale of the product partly or wholly made from our goods, this being until payment of all our receivables and settlement of any current account balance produced to the debit of the customer. Section XII, para. 3 shall apply. 6. If the goods or additional plant which we supply is combined with a property or fitted in a building or heating system, this is deemed to be done for a provisional purpose as defined in art. 95 of the Civil Code, with the intention of separation again as soon as we assert our claim to reservation of ownership. If the building does not belong to the customer, said customer shall make it clear to the owner that such combining or fitting of the goods we have supplied only serves a provisional purpose. 7. If our goods subject to reservation of ownership are built into a property or building, the customer assigns to us now at the present time the remuneration claim he holds against the third party, this being to the amount of the invoiced value of our goods, including the right to the granting of a debt-securing mortgage. In addition, said customer undertakes to transfer an existing debt-securing mortgage to us. The customer also assigns to us now at the present time his work compensation claim to the amount of the invoiced value of the goods we have supplied, and we hereby accept this assignment now at the present time. 8. If the value of the securities existing for us exceeds our receivables by a total of more than 20% and this is not only temporary, we will, on request, return securities of our choice to cover the appropriate amount. XIII. Return of Goods Goods which have been duly ordered and supplied will not generally be taken back. If, however, we do decide to take goods back in exceptional cases, we will pay 90% of the invoiced amount for perfect and unused goods, with deduction of expenses incurred for freight, transportation damage, etc. XIV. Binding Force of the Contract 1. Partial invalidity does not lead to invalidity of the whole contract. 2. Any invalid term is to be replaced as indicated by the purpose of the other terms. XV. Choice of Law 1. The contract shall be governed solely by German law. 2. The terms of the UN Convention on Contracts of Sale and of foreign law are excluded. XVI. Place of Fulfilment/Legal Venue If the customer is a fully qualified merchant, a legal body under public law or a special public fund, the following applies: 1. Provided that nothing has been agreed in writing to the contrary, the place of fulfilment for all obligations under this contract is the seat of our works. 2. In relation to all disputes resulting from the contractual relationship, legal action shall be filed with the court having jurisdiction over our main seat of business. We also have the right to take legal action against the customer at his general legal venue. XVII. Protection of Data The customer agrees to our processing and using the customer's personrelated data obtained in the course of or in association with our business relationship, this being to the extent permitted under the Federal Data Protection Act.