General Terms and Conditions of Pfeuffer GmbH

General Terms and Conditions of Pfeuffer GmbH
D-97342 Marktsteft

§ 1 General

(1) Our deliveries, performances and offers are provided exclusively on the basis of the following provisions.
(2) In our offers and order confirmations, we make reference to our General Terms and Conditions of Business. These Terms and Conditions are deemed accepted at the time of the acceptance of the goods or service at the latest. Countercharges made by the Purchaser on the grounds of its terms and conditions of business and purchase are hereby opposed.
(3) In accordance with the provisions of the Federal Data Protection Act (BDSG), we hereby inform the Customer that we process its personal data needed for the processing of personal data necessary for the processing of the business relations with the aid of electronic data processing systems and forward information.
(4) Should an individual provision of these Terms and Conditions be or become invalid in whole or in part, the validity of the remaining provisions of these Terms and Conditions shall not be affected thereby.
(5) If we are commissioned to perform installation work, our Terms and Conditions of Installation shall apply exclusively in its current version as well as our General Terms and Conditions of Business. If you do not have access to them, you can view or request them from us at any time.

§ 2 Offer and conclusion of contract

(1) Our offers can be revoked until the time of their acceptance.
(2) With the exception of our Managing Directors and authorized signatories ("Prokurist"), our employees are not authorized to make verbal supplementary agreements or verbal assurances.
(3) We reserve the right to make changes to the designs when these changes constitute customary and/or insignificant changes, especially where they constitute improvements to the goods. However we are not obliged to make such changes on products that have already been delivered however.
(4) We reserve proprietary rights, copyrights and other rights over the documents that belong to the offer (e.g. illustrations, technical drawings, descriptions); these documents may only be made accessible to third parties if they are expressly intended for distribution.

§ 3 Prices/Compensation

(1) Our prices are valid for goods delivered ex works without installation and excluding VAT at the rate valid on the date of delivery.
(2) We reserve the right to subsequently charge for all increases in costs (material, wage-, energy costs and legal provisions) arising a month after the conclusion of the agreement where our performances are to be performed within 4 (four) months. This shall also apply for the contract for the performance of continuing obligations ("Dauerschuldverhältnisse")
(3) For orders for which no prices were agreed, the prices according to our Price list valid on the date of delivery shall apply. In other respects, a fair compensation shall be paid which is customary in the particular place.
(4) In the event of significant changes being made to the order (increases or reductions of
10 % or more), a new price must be agreed taking into account the increase or reduction in costs.
If a performance not provided for in the agreement is requested, the contractor shall have an entitlement to special compensation.
The compensation shall be based on the principles of price determination for the contractual performance and the particular costs for the requested performance.
(5) In all cases of the withdrawal from this agreement, for which we are not responsible, we are entitled to charge a processing fee of up to 8 % of the total purchase price including billable special wishes or to demand the damages for the actual expenditure incurred without providing evidence of the damage {caused}. The Customer is entitled to present evidence that no damage arose whatsoever or that the damage is significantly lower in value than the one-off payment.

§ 4 Terms of Payment

(1) Unless otherwise agreed, our bill is due for payment on the 10th of the month following the date on the invoice. If the payment is made by electronic bank transfer, the payment is considered effected with the processing of the bank transfer when the account has sufficient funds. If payment is made by cheque, the payment is considered effected once the cheque is sent or, when not sent, once it has arrived on our premises, unless the cheque is paid into our account. Bills of exchange are only accepted by expressed agreement and are only accepted in lieu of payment in exceptional cases subject to our approval. Discounts and other fees are to be paid by the Customer.
(2) It is not permitted to withhold payments or to set payments off against any counterclaims disputed by us or against a claim of a customer without the force of a final judgment.
(3) Despite any provisions of the Customer to the contrary, we are entitled to initially offset payments against the Customer's oldest debt. If costs and interest payments have already been incurred, payment will initially be set off against these costs, followed by the interest payments, followed lastly by the main performance.
(4) The Customer shall be deemed to be in arrears should he fail to effect payment 30 days subsequent to the due date and receipt of the invoice. If the Customer is in arrears, we are entitled to charge interest at a rate of 8% above the basic interest rate as defined by § 288 of the German Commercial Code (BGB) from the date in question onwards. In the event that we make use of an overdraft facility at an interest rate which is higher, we are entitled to charge a rate of interest in accordance with this interest.
(5) If the Customer fails to meet his payment obligations, e.g. if a cheque or bill of exchange is not redeemed, or if legal proceedings are commenced for the purposes of debt recovery, we will be entitled to demand that our entire claim is due for immediate payment.
(6) We are entitled to charge all our claims to the Customer. This includes all claims which the Customer has against us from deliveries or other legal reasons, unless a contractual exclusion of set-off ("Aufrechnungsverbot") exists, as defined by §§ 390 - 395 German Commercial Code (BGB).

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§5 Reservation of Title and Other Securities

(1) The goods shall remain our property until the payment in full of all claims arising from the business relationship (including any supplementary claims and any expenses incurred in the interests of the Customer). The reserved title applies for current account claims (current account relationship). (Current account relationship)
(2) The reserved ownership shall serve as security for our current account claims, also when payments are made for specially identified claims. An balance is deemed accepted if the Customer does not object to the balance statement within 2 (two) weeks of receiving it.
(3) Processing or remodeling of goods that remain our property must always be performed on our behalf but without any obligation for us. The new product will become our property. If the goods are processed with goods that are not our property, we shall acquire co-ownership of the new product in proportion to the value of the reserved goods to the other goods at the time of processing. If the reserved goods are combined with goods that are not our property in accordance with §94 German Commercial Code (BGB), we shall become co-owner in accordance with the legal provisions. If the Customer acquires common property through the combination, he shall transfer co-ownership to us in advance, in proportion to the value of the reserved goods to the other goods at the time of the combination. The Customer shall keep our jointly-held property at no charge to us with the due diligence of a prudent merchant.
(4) The Customer is entitled to process and dispose of the reserved goods in a proper business transaction.
(5) As a security, the Customer hereby shall assign us in advance all claims in his favor in connection with the reserved goods, including balance claims from current account agreements, from a sale, processing or modification or combination of the goods delivered by us and/or services rendered by us. We accept this assignment. This shall also apply for claims of the Customer from the loss or damage to the reserved goods (insurance, tort, etc.) The assignment is limited to the amount of the price of our goods and services according to § 3.1
(6) At the same time, the Customer hereby transfers all security rights in his favor vis-à-vis his customers to us in the proportion of the value of the claims and rights assigned to us within the scope of the extended reservation of title. If this is not possible, the Customer shall assign the reserved claims and the profit generated from the disposal of the security right to us pro rata. Likewise, the Customer shall assign to us its rights vis-à-vis its customers to the concession of a builder's lien and to the concession of security performances in accordance with § 648a German Civil Code (BGB). We accept the assignment.
(7) We revocably authorize the Customer in own name to collect the claims assigned to us. We revoke this direct debit authorization in advance in case the Customer does not meet an obligation to us, especially if he does not meet his payment obligations. We are then entitled to disclose the assignment of the claim and any security rights transferred to us. Any costs from the disposal and legal proceedings with respect to the transferred claims and security rights shall be borne by the Customer.
(8) A lien may not be placed on the delivered goods nor may they be assigned as security. When third parties access the reserved goods, the Customer shall point out our ownership, shall notify us immediately and provide us with all the help necessary to defend our rights.
(9) In the event that the Customer acts in breach of this agreement, in particular when defaulting on payment, impairing securities, handling the reserved goods improperly or transferring them to a third party in contravention of its obligations, we reserve the right to assert our reservation of title and to immediately demand the restitution of the reserved goods and to acquire direct possession of the goods either directly or by way of our authorized representatives, or, where appropriate, to demand the assignment of the claims for restitution of the customer vis-à-vis third parties.
The enforcement of the reservation of title does not constitute a withdrawal from the agreement.
(10) If the value of the securities for us is higher than our demands by more than 10 % in total, we are obliged to release security collateral to this amount of our choosing at the request of the Customer.

§ 6 Delivery and Performance Dates

(1) The delivery and performance dates specified stipulated by us are non-binding unless they have been made a fixed date.
(2) The delivery and performance dates are respected
- when installation is owing, with the readiness for acceptance of the performance,

- with an obligation to be performed at the creditor's place of business ("Bringschuld") with handover,

- in other cases when the delivery item has left the factory or the readiness for dispatch was communicated.
(3) The delivery and performance dates shall be appropriately extended in case of measures within the scope of industrial disputes, in particular strike and lock-out as well as in case of the occurrence of unforeseen hindrances which do not lie within our sphere of influence, insofar as such obstacles demonstrably have a considerable influence on the completion or delivery of the delivery item or the execution of the performance. This also applies if these circumstances affect our suppliers. In important cases, we will inform the customer of the beginning and the end of such circumstances as soon as possible.
(4) In the event of a default, the Customer, as long as he is not a consumer, is only entitled to withdraw from the agreement if he submitted an appropriate extension in writing, together with a declaration that he refuses to take delivery of the subject of the agreement once this extension has lapsed to no avail. In this case, a termination of the contract is only effective when declared in writing.

(5) If we default on delivery, the Customer shall only be able to demand claims for compensation for damage as well as delivery/performance if we are at fault for the delay because of willful conduct or gross negligence. Liability is limited to foreseeable damages which are typical.
(6) if the shipment or installation is delayed for reasons for which the Customer is responsible and if he does not accept our performance despite our request with a deadline, we will be entitled, after expiry of the deadline, to demand a one-off damage payment for the delay amounting to 0.5 % per month up to a maximum of 10 % of the invoiced amount. Right to further legal claims shall be reserved. The Customer has the right to provide us with evidence that no damage or only minor damage resulted from his delay
(7) If we have not defaulted on delivery, we are exempted from compliance with the delivery and performance dates all the while the contractual obligations are not being met by the Customer.
(8) The type of conveyance, the means of transport, the transport route, the type and scope of the required protection aids and the choice of haulage form or carrier, and packaging is left to our discretion. This takes place at our discretion and under due diligence under the exclusion of any liability whatsoever. At the customer's request and expense, we can insure the shipment against theft, breakage, transport, and fire or water damage and against other insurable risks.
(9) If it has been agreed for us to carry out the installation work, the Customer must ensure we have access to the products and can install the products without hindrance.

§ 7 Liability for Defects and Other Liability

(1) If a defect has occurred for which we are to blame, we are entitled to remedy the defect or deliver a replacement at the discretion of the Customer. In the case that the defect is remedied, we shall be obliged to bear all the necessary costs for the remedying of the defect, in particular transport, labor and material costs, provided that such costs are not increased by the additional cost of taking the object of sale to another location other than the place of performance.

(2) The right of the Customer according to §439 Sub-section 1 German Civil Code (BGB) either to remedy the defect or request delivery of an item which is free of defects, shall transfer to us once a reasonable time period granted to him to make the choice has expired to no avail.
(3) If the rework fails for a second time, or if we are not in the position to remedy the replacement delivery, the Customer is entitled to demand a reduction in the compensation (reduction) or to revoke the agreement (withdraw) at his discretion.
(4) In the case of construction performances, the right of the Customer to withdraw from the agreement on account of a defect is excluded.
(5) In the case of an insignificant defect, subsequent performance is excluded for all deliveries/performances
.
(6) Liability on account of minor visual defects to the operating interfaces of cell panels is excluded. This shall not apply when the Customer orders a complete, interrelated sheet metal batch. If this is not the case, different sheet metal batches cause different brush and circular matt images and minor ripples in steelworks.
(7) In the case of a merely negligible breach of obligation by us, or by one of our vicarious agents, our liability is limited to foreseeable damages that are typical for this {kind of} agreement. This shall not apply if we have assumed liability for the quality of the item. The liability for damages from injury to life, limb or heath is unlimited.
(8) For our building materials, we provide a warranty for a period of 5 (five) years providing that the customer uses the building materials in the usual, foreseeable manner and a defect in the building materials we provided leads to a defect in the building construction. Otherwise a warranty period of 2 (two) years applies; in a business without consumers:
1 year. The warranty period begins on the date on which the item(s) are handed over to the Customer.
(9) No warranty can be given for damages which arise from the following reasons providing that we were not responsible for them:

- inappropriate use or use not as intended,

- incorrect installation/commissioning by the ordering party or third party,

- natural wear and tear, erroneous or negligible treatment, unsuitable operating equipment,

- Replacement materials,

- faulty construction work,

- unsuitable foundations,

- chemical, electrochemical or electrical influences.
(10) No warranty can be accepted for damages which the Customer caused himself owing to unsuitable or improper use; incorrect installation or commissioning by the customer or by third parties; incorrect or negligible treatment; damage to the painted surface and the corrosion arising from the same; unsuitable operating resources; chemical or electrochemical or electrical influences; non-compliance with installation-, operating- and maintenance manuals; improper application or repair work by the customer or third parties; or owing to the influence of parts of foreign origin or natural wear and tear. We expressly point out that there is no obligation to provide a warranty when wear parts such as e.g. seals, door seals and hinges wear out from natural wear and tear. Moreover, our warranty obligation does not include damages which arose from continuing to use the product despite the occurrence of a defect.
(10) Persons deployed to inspect for defects are not authorized to confirm defects or to submit declarations that with a binding effect for us.

§8 Place of Performance, Place of Jurisdiction, Applicable Law

(1) The place of performance for the delivery and payment is Marktsteft
(2) The place of jurisdiction is governed by the statutory provisions. If the Customer is an entrepreneur or public law corporation or public sector fund, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office.
(3) These business relations and the total legal relations between the Customer and us are governed by the laws of the Federal Republic of Germany.
(4) Should an individual provision of this Agreement be or become invalid or unenforceable, the validity of all of the remaining provisions of this Agreement shall not be affected thereby. The invalid or unenforceable provision shall be replaced with a valid provision which the parties would have agreed upon to achieve the same economic impact.

Marktsteft, August 2006