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Terms of Sale of LAWO AG February 2018

 

1 ApplicationThese Terms of Sale – the "Terms" – only apply to the extent that the customer is a trader ["Unternehmer"] as defined in German Civil Code [BGB] § 14, a legal entity under public law or an investment fund constituted under public law. These Terms govern all present and future contracts, deliveries and other services (hereinafter also referred to as "Service") even if the Terms are not expressly referenced. Our Terms apply exclusively. We are not bound by the customer's terms and conditions even if we do not expressly object to them again upon receipt. They do not become part of the contract even if the order is accepted or filled without reservation.

2 Contract Our offers are non-binding unless expressly stated otherwise. We are not bound by any agreements, including, without limitation, oral side agreements and representations made by our sales staff, until we confirm them in writing.

Obvious mistakes or printing, spelling, arithmetical or costing errors are not binding and do not give grounds for claims. We extend no contractual guarantees ("Garantie") except those we explicitly identify as such in writing.

The scope and subject matter of the Service is exclusively governed by the order confirmation or, if the order is filled immediately, the delivery note. If the order confirmation or delivery note contains changes to the customer's purchase order, the customer is deemed to have consented to them if the customer unconditionally accepts the Service and does not object in writing immediately.

Our offers are based on information provided by the customer, without knowledge of the customer's circumstances or requirements. We only assume liability for a particular intended use or fitness for a specific – technical – purpose if specifically and expressly agreed upon in writing, even if we perform on the basis of the customer's drawings, specifications, specimens, plans, et cetera.

Information, samples, demonstration items or illustrations in catalogs, price lists or other advertising materials are approximations only (e.g. weights, dimensions or technical data) unless exact conformity is necessary for the Service to be used for the contracted purpose. Any reference to technical standards is only a description of our Service, not a guarantee of certain characteristics.

In the absence of any agreement to the contrary, we are not liable to provide instructions or advice. If we provide advice or technical information outside of the agreed-upon scope of Service, the advice or information will be provided without any liability whatsoever.

Any documentation (such as manuals) that we may maintain for certain Services will be available to the customer as a free download on our website. We can provide printed copies for a fee that covers our expenses.

3 Prices/Payment Our list prices apply, as they may change from time to time. In the absence of any agreement to the contrary, the prices are ex works and do not include value-added tax or additional services such as packaging, loading, freight charges, unloading, transport insurance, assembly, customs, installation, implementation, introduction, training, maintenance, out-of-pocket expenses, travel costs or other expenditures.

In the absence of any agreement to the contrary, invoices are due immediately without discounts.

To be timely, a payment must be credited to our account by the deadline. Cash discounts are only allowed with our express written permission.

We may demand advance payment, particularly for orders of spare parts.

We can demand advance payment and/or exercise a right of retention with respect to further performance in the event of a default in payment or reasonable doubt as to the customer's ability to perform. A default in payment automatically voids any rebates, cash discounts and other concessions, and default interest will become due pursuant to German Civil Code [BGB] § 288.

The customer has no right of retention or set-off except where based on the same contractual relationship.

If a customer located outside the Federal Republic of Germany (foreign territory buyer) or its authorized agent collects Services from us and transports or ships them to the foreign territory, the customer must provide us with the proof required for tax purposes (evidence of export). If this proof is not provided, the customer will have to pay value-added tax at the rate applicable within the Federal Republic of Germany on the invoice amount for the delivery.

4 Delivery, Passage of Risk The Service/delivery is performed and the documents are prepared in accordance with ICC Incoterms® 2010. The UCP 600 (Uniform Customs and Practice for Documentary Credits issued by the ICC Paris) apply.

We are allowed to provide the Service early, in parts, or in quantities that exceed or fall short of the contracted quantities as long as this is not unreasonable.

We will ship at the customer's risk and expense without guaranteeing that the cheapest method will be used. Unless the customer's place of business is stipulated as the place of performance for the delivery, the delivery deadline is deemed to be met as long as the carrier picks up the shipment for shipping by the deadline. We assume no liability for any delays caused by the carrier. We will insure the Service and/or shipping at the customer's prior instructions and expense.

If the Service has to be accepted, risk will pass upon acceptance. The acceptance must be performed without undue delay after issuance of the ready-to-accept notice. The customer may not refuse acceptance due to an insignificant defect.

The risk of accidental loss and deterioration passes to the customer no later than upon acceptance or handover to the carrier unless our contractual obligation, by way of exception, includes assembly and installation at the place of performance. If the acceptance or shipment is delayed due to circumstances beyond our control, risk will pass to the customer upon issuance of the ready-to-accept or ready-to-ship notice.

Service deadlines or other deadlines promised in written or oral form are only approximate unless we agree in writing to a fixed Service deadline. Service deadlines start running after receipt of the order confirmation, the full, complete and non-defective provision of customer-supplied materials, the resolution of all technical and commercial questions, and the receipt of any required advance payments.

5 Ownership We reserve all rights – including, without limitation, copyrights, ownership rights and other intellectual property rights – in and to all samples, demonstration items, tools, specifications, models, plans, data, drawings, cost estimates, tangible and intangible information, and similar items provided to the customer in electronic or any other form. In the absence of any agreement to the contrary, any reproduction or release to third parties is prohibited.

The customer will grant us the following security until the settlement of all accounts receivable (including any and all outstanding balances on running accounts) that the customer owes us now or in the future on any legal grounds whatsoever; we will release the security at our option on request insofar as its value exceeds the secured accounts receivable by more than 20%:

We retain title to the Service until all payments owed under the business relationship have been received. Until such time as title to the Service passes to the customer:

- The customer must keep the Service in good working order. The customer must insure the Service for our benefit at the customer's expense against theft, breakage, fire, water and other perils to the extent that the customer can be reasonably expected to do so. Proof of insurance must be presented on request. The Service must not be pledged or assigned as security.

6 Defects If the customer is a merchant or a public law body with legal personality, it must carefully inspect the received Service without unreasonable delay upon receipt. We must be notified of any defects in writing without unreasonable delay ("notice of defects"). Damages sustained in transit or during shipping must be documented vis-à-vis the carrier. German Commercial Code [HGB] § 377 applies in all other regards. If no notice is given, the Service is deemed to be free from defects and in conformity with the purchase order unless the defect was not detectable during the inspection. Notice of such defects must be given immediately after discovering them.

Any resale, installation or other use of an allegedly defective Service is deemed approval of performance as contracted, and to that extent precludes the possibility of claims for defects.

Any negotiation regarding notices of defects does not constitute a waiver on our part of the defense that the notices were late, unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgment of defects.

We may deviate from the stipulated scope or quality due to the materials, or modify the Service to reflect technical progress in terms of construction, design, dimensions, weight or color within the customary industry tolerances, provided (a) this does not restrict the usability of the Service for the contracted purpose, (b) no contractual guarantee exists, and (c) the customer can be reasonably expected to accept the change(s) and/or deviation(s) in light of an objective assessment of all circumstances.

If the Service is defective, we will discharge our obligation to remedy the defect by, at our option, repairing the defective Service or replacing it with a non-defective Service. We can refuse a type of remedy or the entire remedy if it is impracticable for us. The customer must give us the requisite time, opportunity and access to remedy the defect; failing that, we will be exempted from any and all liability for the resultant consequences.

If we decide to provide a replacement, we may stipulate that it can only be provided concurrently with the return of the defective Service. Replaced parts become our property.

We bear the expenses necessary to remedy the defect to the extent they have not been increased by transporting the Service to a location other than the place of performance. The customer bears any removal, installation or other costs.

If we fail to remedy the defect or refuse to provide either type of remedy, the customer may, after fixing a reasonable additional period for us to perform our obligations, rescind the contract, reduce the compensation and/or claim damages. The right to a price reduction is excluded unless the defect is merely insignificant, was concealed with the intent to deceive or relates to a contractual guarantee of certain characteristics.

The customer may remedy the defect itself, or have it remedied by third parties, and demand reimbursement of the necessary expenses from us, but solely in emergencies that jeopardize operating safety or where required to avert unreasonably severe damage or loss, in which case we must be notified immediately.

If the customer or a third party performs a repair without first giving us an opportunity to remedy the defect, we will assume no liability whatsoever for the resultant consequences. The same applies to any modifications made without our prior consent to the Service, the replacement of parts or the use of consumable materials that do not conform to the original specifications unless the defect is not caused thereby.

We extend no warranty for any inappropriate or improper use or repairs, improper assembly or placement into service by the customer or third parties, failure to follow processing guidelines or operation or installation manuals, natural wear and tear, improper or negligent handling or storage, improper preventive maintenance or care, inappropriate supplies or electrochemical, electrical or environmental influences, provided this is beyond our control.

The customer is liable for any unjustified notices of defects if the defect's cause lies within the customer's area of responsibility and the customer acted at least negligently in failing to recognize this fact. We will charge our current list prices for any expenses not attributable to us under our liability for defects.

Spare parts will be kept in stock for five years after discontinuation unless otherwise specified for a particular model series.

We will not accept any defect-related claims brought by the customer that go beyond or are not governed by these Terms.

7 Liability (1) Unless otherwise specified in these Terms, including the provisions set out below, our liability for breaches of our contractual and non-contractual duties is as contemplated by law.

(2) We are liable to pay damages for willful misconduct and gross negligence on any legal grounds whatsoever wherever fault-based liability applies. Absent any laws stipulating a milder liability standard (e.g. exercising the same standard of care as in one’s own affairs), our liability for slight negligence is limited to

a) damages resulting from injury to life, limb or health,

b) damages resulting from the significant breach of a material contractual duty (an obligation whose satisfaction is essential to the proper performance of the contract and upon whose satisfaction the contracting party may and does consistently rely); in this case, however, our liability is limited to the payment of foreseeable, typical damages.

(3) The liability limitations set out in section 2 also apply to breaches of duty by or for the benefit of individuals for whom we are vicariously liable by law. The liability limitations do not apply wherever we have concealed a defect with the intent to deceive or have extended a contractual guarantee regarding certain characteristics of the goods or for customer claims under the German Product Liability Act [ProdHaftG]. We have the right to raise the defense of contributory fault or contributory causation.

(4) The customer can only rescind or terminate the contract for a breach of duty that does not constitute a defect if we are responsible for the breach. The customer does not have the right to terminate the contract at any time for convenience (including, without limitation, pursuant to German Civil Code [BGB] § 651, § 649). The statutory requirements and legal consequences apply in all other regards.

(5) The statutory provisions determine when we are in default in delivery. The customer must issue a reminder in any event. In the event of a culpable delay in delivery due to slight negligence, our liability for liquidated damages for each completed week of delay is limited to 0.5% of the amount invoiced for the Service affected by the delay, but no more than 5% in total. We may furnish proof that the damages are smaller. The damages will be applied to further claims for damages.

8 Liability Disclaimer and Limitation Where liability is limited to the foreseeable damages or losses which are typical for the contract, our liability for each damage or loss occurrence is limited to EUR 100,000.00 for property damage and EUR 200,000.00 for other losses; the total liability for all such damages and losses within a given calendar year is limited to twice these amounts. This limitation does not, however, apply to the extent that losses are covered by general liability insurance.

In the absence of any agreement to the contrary, the limitation period for claims for defects expires one year from the time of handover/delivery unless the law prescribes longer periods, e.g. in case of fraud, willful misconduct, injury to life limb and health, under the German Product Liability Act [ProdHaftG] or pursuant to German Civil Code [BGB] § 438(1)(2) (construction and construction materials) and § 634a(1)(2) (construction defects).

9 Non-Disclosure and Data Protection

The customer will keep all the contents of the contract strictly confidential, including, without limitation, prices, discounts, know-how and other trade secrets, and will refrain from disclosing or otherwise making available to third parties any information, documentation, drawings or other documents without our express written approval. This does not, however, apply to contents which are publicly known without violating the non-disclosure obligation. The customer will impose the same non-disclosure obligation on its employees and associate companies and on third parties to whom the contents have to be disclosed.

We may use the customer (including its logo, brand) and the project as a reference as long as the customer does not object giving good cause.

The customer consents to our processing its data (communication details, responsible employees, nature and volume of the customer's purchase orders etc.) for contract administration and execution. We may also use the data to notify the customer about our products and services if these products and services are typically used in connection with the products and services that the customer has purchased from us.

10 Final Provisions The Terms also apply to the customer's associate companies ["verbundene Unternehmen"] within the meaning of German Companies Act [AktG] § 15. The customer must bind its associate companies to comply with these Terms.

Any amendments and modifications hereto that are not based on an individual agreement must be made in written form (including fax). This also applies to a waiver of the written form requirement. If any provisions of these Terms are or become invalid, the validity of the remaining provisions will be unaffected thereby.

The customer may not assign to third parties any rights granted in this contract without our consent. German Commercial Code [HGB] § 354 a remains unaffected thereby.

German law applies unless national law inevitably conflicts with it.

In the absence of any agreement to the contrary and irrespective of the stipulated Incoterm, our principal place of business is the place of performance, including with respect to warranty claims. If the customer is a merchant, a legal entity under public law or an investment fund constituted under public law, our principal place of business is the exclusive place of domestic and international jurisdiction for all disputes arising directly or indirectly under the contractual relationship. The foregoing applies mutatis mutandis if the buyer is a trader ["Unternehmer"] as defined in German Civil Code [BGB] § 14.

However, we are in all events entitled to bring suit at the place of performance of the delivery obligation pursuant to these Terms or an overriding single agreement or at the buyer's place of general jurisdiction. The foregoing does not affect overriding provisions of law, including, without limitation, those regarding exclusive jurisdictions.

The Zurich Arbitration Court has jurisdiction over all legal disputes with customers outside the EU arising out of or in relation to the contract in accordance with the Swiss Rules of International Arbitration of the Swiss Chamber of Commerce. The Arbitration Court consists of one arbitrator if the amount in dispute is up to EUR 100,000.00 before taxes and of three arbitrators if the amount is greater. The seat of arbitration is Zurich, Switzerland. Arbitration proceedings are conducted in the contract language. We are, however, entitled to bring action against the customer at the court that has jurisdiction over the place of the customer's residence.