GTC

General Terms and Conditions

Company
MKF Helmut Möschl GmbH

Untertorstraße 29
97834 Billingshausen

§1 Applicability of Terms and Conditions

1) By placing the order, the Customer acknowledges the following general terms and conditions also for future orders. These terms and conditions are considered accept-ed with acceptance of our deliveries and services at the latest. Confirmations by the Customer containing references to their terms and conditions or purchase condi-tions are herewith objected against.

2) No oral side agreements were made before or during the conclusion of the agreement. Side agreements, changes and amendments made after the conclusion of the agreement shall only be valid if they are confirmed in writing by the Contractor. This holds particularly true for any possible changes to the present confirmation and com-pleteness clause. A waiver of the written form requirement clause itself must be in writing in order to be valid.

3) The employees of the Contractor are not entitled to make any oral side agreements or make any oral promises exceeding the contents of the written agreement.

§ 2 Quotation and Conclusion of Agreement

1) Our offers and quotations are subject to change without notice and without obligation. In order to be legally valid, notices of acceptance and all orders must be confirmed in writing or via fax or e-mail by the Contractor. No additions, amendments, changes or side agreements were made before or during the conclusion of the agreement. Side agreements, changes and amendments made after the conclusion of the agreement shall only be valid if they are confirmed in writing by the Contractor.

2) Drawings, illustrations, measurements, weights or any other performance data shall only be obliging if this is expressly and individually agreed in writing.

3) We reserve proprietary right and copy right in all drawings, illustrations, and calculations. These must not be made available to third parties.

§ 3 Prices

1) All prices given in our quotations are fixed prices, to which we consider ourselves bound for a period of 30 days after the date of the quote. The prices quoted in the order confirmation are decisive. The prices are quoted strictly net, "ex works" plus the respectively valid VAT.

2) Unless agreed otherwise in writing, the prices are quoted excluding packaging and forwarding charges.

§ 4 Delivery Time and Time of Performance

1) The due dates and deadlines stated by us are not binding, unless expressly agreed otherwise in writing.

3) Even in case of bindingly agreed due dates and deadlines we shall not be liable for delays in delivery and perfor-mance due to Force Majeure and caused by events that severely impede delivery or render it impossible - including, but not limited to, subsequent material procurement difficulties, industrial action, business disruptions, short-age in personnel, shortage in means of transport, war, etc., even if those occur with our suppliers or their subsuppliers. The aforementioned circumstances give us the right to extend the time of delivery and performance, respectively, for the duration of the impediment plus an ad-equate start-up period, or to completely or partially withdraw from the agreement on account of the part that has not been fulfilled yet.

4) If the impediment lasts for more than 3 months, the Customer shall be entitled to withdraw from the agreement with regard to the part that has not been fulfilled yet, after having set an appropriate grace period. If the delivery time is extended, or if the Contractor is released from their obligation, the Customer shall not be entitled to any claims for damages therefrom. However, the Contractor can only refer to the described circumstances if they immediately inform the Customer thereof.

5) If for reasons they are responsible for the Contractor is in default of delivery, and if the Customer has set an appropriate grace period with a notice to act setting out the consequences of noncompliance, the Customer shall be entitled to withdraw from the agreement after fruitless expiry of this grace period; the orderer shall only be entitled to claims for damages on the grounds of failure of performance to the amount of the foreseeable damage if the default is caused by intent or gross negligence of the Contractor; for the rest, the liability for damages shall be limited to 50% of the damage that occurred. The limitation of liability shall not apply in cases where a commercial firm deal has been agreed; the same applies if the Customer can claim that due to the default, which the Contractor is responsible for, their interest in the fulfilment of the agreement has ended.

6) In any case, the Contractor's obligation to deliver shall be honoured subject to the Customer timely and duly complying with their obligations.

7) If the Customer is in default of acceptance or is in breach of any other obligations to co-operate, the Contractor shall be entitled to claim for the resulting damages, in-cluding any potential additional claims. In that case, the risk of accidental loss or deterioration of the object of the sale will pass to the Customer at the moment in which their default of acceptance commences.

§ 5 Versand und Gefahrübergang

1) Die Gefahr des Untergangs, der Verschlechterung und der Versendung geht in allen Fällen auf den Auftraggeber über, sobald die Ware unser Werk bzw. Betriebsgelände verlassen hat, auch wenn frachtfreie Lieferung vereinbart wurde.

2) Falls der Versand ohne unser Verschulden unmöglich wird, geht die Gefahr mit der Meldung der Versandbereitschaft auf den Auftraggeber über.

3) Die Wahl des Versandweges und der Versandart bleibt, vorbehaltlich einer anderen schriftlichen Vereinbarung uns überlassen.

§ 5 Dispatch and Transfer of Risks

1) The risk of accidental loss, deterioration or shipment will pass to the Customer in any case as soon as the goods leave our plant and factory premises, respectively, even if free delivery had been agreed.

2) Should delivery become impossible through no fault of ours, the risk passes to the Customer upon advice of readiness for dispatch.

3) Subject to a written agreement, we shall have the choice of the method and type of dispatch.

§ 6 Warranty

1) The Customer undertakes to check goods immediately after receipt, and to notify of obvious defects - be it with regard to quantity, quality or for any other reasons - immediately in writing, no later than within two weeks after receipt of the delivery item. Within another week, the Customer must return the rejected goods to us.

2) After the deadline detailed under fig. 1) has elapsed, the goods shall be deemed accepted. As a result of this, the Customer's warranty claims for obvious defects will have ceased to exist, by taking into consideration the aforementioned fig. 1) and 2). For timely notified, obvious de-fects we shall provide warranty in accordance with the following fig. 4) to 8).

3) For hidden defects, the statutory warranty regulations shall apply in accordance with the following figures.

4) After our goods have been processed or incorporated by the Customer or third parties, warranty for all arising defects shall be excluded, unless the processing or the incorporation has been done professionally.

5) In case the defects are being notified of and the goods returned to us in time, we will honour our warranty obligations either by sending goods free from defects as a re-placement delivery, in the ordered version, or by rectifica-tion of defects, at our discretion.

6) If a replacement delivery or the rectification of defects fails after an appropriate period, it is at the discretion of the Customer to claim either reduction of the purchase price (reduction) or rescission of the agreement (rescission).

7) Only the direct Customer shall be entitled to warranty claims against us, and they shall not be assignable.

8) The previous paragraphs contain the concluding warranty for our products and exclude other warranty claims of any kind.

This shall not apply to claims arising from warranted characteristics; here the legal provisions shall apply.

§ 7 Retention of Title

1) The Contractor shall retain the title in the delivery item until all payments in connection with the supply agreement have been made in full. In case of conduct that constitutes a breach of the contract by the Customer, especially in case of default of payment, the Contractor shall be entitled to take back the object of the sale. If the Contractor takes back the object of the sale, this does not constitute a withdrawal from the agreement, unless the Contractor has expressly declared this in writing. Seizure of the object of the sale by the Contractor always constitutes a withdrawal from the agreement. After they have taken back the object of the sale, the Contractor shall be entitled to make use of it; the utilisation proceeds shall be set off against the accounts payable of the Customer - minus appropriate utilisation costs.

2) The Customer shall be obliged to handle the delivery item with care; they must ensure at their own cost that the delivery item is insured in case of damage or destruction and loss due to fire, water or theft, respectively.

3) In case of seizure of the item or any other interference by third parties, the Customer must immediately inform the Contractor in writing so that the Contractor can take action in compliance with article 771 ZPO [German Code of Civil Procedure]. If third parties are not in a position to reimburse the Contractor for court or out-of-court expenses involved in an action according to article 771 ZPO, the Customer shall be liable for the loss the Contractor sus-tains as a result of that.

4) The Customer shall be entitled to resell the object of the sale in the ordinary course of business; however, they herewith assign all receivables equivalent to the amount owed to the Contractor (including VAT), which the Customer generates as a result of such a resale from Customer's clients or third parties; and this shall be done regardless of whether the object of the sale was resold as is or after further processing. Even after the assignment, the Customer shall still be entitled to collect these receivables. The Contractor's entitlement to collect the receivables shall remain unaffected. The Contractor shall, however, undertake not to collect said receivables as long as the Customer meets their payment obligations with the in-come generated, is not in default of payment and in particular as long as no application for the institution of bankruptcy, composition or insolvency proceedings have been filed for or the Customer does not cease to pay. However, if that is the case, the Contractor can request the Customer to disclose the assigned receivables and the respective debtors, to give all the details required for collection, to submit the appurtenant documents, and to inform the debtors (third parties) of the assignment.

5) Processing or alteration of the object of the sale by the Customer is always performed on behalf of the Contrac-tor. If the delivery item is combined with other items not belonging to the Contractor, the Contractor shall acquire the joint ownership in the new item in relation of the value of the delivery item to the other combined items at the time of processing. Incidentally, the same provisions as those governing the object of the sale delivered under the retention of title shall also apply to the item created as a result of processing.

6) If the delivery item is inseparably mixed with other items not belonging to the Contractor, the Contractor shall ac-quire the joint ownership in the new item in relation of the value of the delivery item to the other mixed items at the time of mixing. If they are compound in such a way that the Customer’s item must be regarded as the main item, it is agreed that the Customer proportionally transfers joint ownership to the Contractor. The Customer holds the exclusive ownership or joint ownership, which has thereby arisen, in safe keeping for the Contractor.

7) As collateral for the Contractor's receivables from the Customer, the latter shall also assign to the Contractor the receivables from third parties generated as a result of the connection of the object of the sale with land.

8) The Contractor undertake to release the collateral we are entitled to upon Customer's request to the extent that the collectable amount of our collateral exceeds the receiva-bles to be securitized by more than 10 %; we shall have the right to choose the receivables to be released.

§ 8 Payment

1) Our invoices must be paid within 30 days after the date of invoice with the net amount of the invoice unless agreed otherwise in writing. We shall be entitled to credit incoming payments against the Customer's old debts first, notwithstanding contrary stipulations by the Customer. If costs and interest have already accrued, we may offset payments firstly against costs, then against interest and finally against the main item.

2) A discount of 2 % will be granted for payment within 14 days after invoice date, unless there are any further outstanding claims from our business relationships with the Customer.

3) A payment shall be deemed effected when we can dispose of the amount; in case of cheques therefore only after they have been cashed in.

4) The Customer shall only be entitled to offset, withhold or reduce payments, even in cases of notices of defects or counter claims, if the counter claims have been established as final and undisputed. The Contractor shall furthermore also be entitled to retention due to counter-claims from the same contractual relationship.

§ 9 Limitation of Liability

1) Any claims for damages resulting from the impossibility of performance, positive breach of claim, culpa in contra-hendo and tort shall be excluded both against us and against all our employees and/or vicarious agents unless such damage has been caused willfully or through gross negligence.

§ 10 Place of Jurisdiction - Partial Nullity

1) If the Customer is a general merchant as stipulated by the Handelsgesetzbuch [German Commercial Code] or a le-gal entity or separate estate under public law, the place of jurisdiction for all disputes resulting directly or indirectly from this contractual relationship shall be Würzburg.

2) In any case, the laws of the Federal Republic of Germany shall be applicable to the entire legal relationship between the Contractor and the Customer.

Should all or part of one of the provisions of this business relationship be or become invalid, this shall not affect the validity of the remaining provisions or agreements.