Delivery Terms & Conditions

Terms and Conditions of Delivery

As of: October 2007

I. Scope

These General Terms and Conditions of Delivery constitute general terms and conditions within the meaning of §§ 305 ff BGB (German Civil Code) and are hereinafter referred to as ‘GTC’. They apply to the entire business relationship between the customer (hereinafter referred to as ‘recipient’) and EPTechnologies ApS(hereinafter referred to as ‘supplier’).

II. General provisions

1. The scope of deliveries or services (hereinafter referred to as ‘deliveries’) shall be determined by the written declarations of both parties.

However, the general terms and conditions of the recipient shall only apply to the extent that the supplier has expressly agreed to them in writing. These terms and conditions shall also apply to all future transactions between the parties.

2. The supplier reserves all rights, without limitation, to the exploitation of its property rights and copyrights in cost estimates, drawings and other documents (hereinafter referred to as ‘documents’). The documents may only be made accessible to third parties with the prior consent of the supplier and, if the supplier is not awarded the contract, must be returned to the supplier immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to the documents of the supplier; however, these may be made accessible to third parties to whom the supplier has permissibly transferred deliveries.

3. The supplier shall have the non-exclusive right to use standard software with the agreed performance features in an unaltered form on the agreed equipment. The supplier may not create a backup copy without express agreement.

4. The declarations and lighting plans provided by the supplier are generally non-binding and subject to change. The binding nature is excluded in the sense of § 145 last clause of the German Civil Code (BGB). This constitutes a request to make a binding offer.

5. Partial deliveries are permissible as long as they are reasonable for the recipient. Fixed-date transactions in the sense of § 376 of the German Commercial Code (HGB) require the express written confirmation of the supplier.

6. The provisions of the Act on the Reform of Safety of Technical Work Equipment and Consumer Products dated 6 January 2004 (GPSG) shall remain unaffected by these Terms and Conditions, insofar as it concerns mandatory law that is contrary to these Terms and Conditions. The same shall apply to all other mandatory legal provisions.

7. Correct and timely delivery by our suppliers remains reserved.

III. Prices and payment terms

1. Prices are ex works and exclude packaging; value added tax shall be added at the then applicable rate. The supplier's current price list shall apply. All prices are in euros.

2. The supplier shall charge separately for the packaging materials required to transport the deliveries; the costs of this packaging shall be added to the price for the main contractual service. If the supplier has taken on the installation or assembly and nothing else has been agreed, the recipient of the delivery shall bear all the necessary additional costs such as travel costs, costs for transporting tools and personal luggage as well as allowances in addition to the agreed remuneration.

3. Payments shall be made free of transaction charges at the supplier's paying agent. The supplier reserves the right to adjust prices during the year for the sale of products that are subject to strong price fluctuations in the respective commodity markets.

The price of the delivery may increase if the delivery takes place more than four months after the conclusion of the contract and this is due to cost or wage increases in the supplier's area.

4. The purchase price is due for payment in full upon delivery. The recipient of the delivery shall be in default without further declarations by the supplier 14 days after the due date if he has not paid.

If the payment deadline is not met, the supplier is entitled to withdraw condition classifications. In the event of defects, the recipient of the delivery shall not have a right of retention if this is not reasonably proportionate to the defects and the probable costs of subsequent performance. The statutory provisions regarding default interest shall remain unaffected. The supplier's right to claim damages in excess of the statutory default interest rate shall remain unaffected, provided that it can be proven. The recipient of the delivery is entitled to prove that no corresponding damage has occurred.

5. The consignee may only set off claims that are undisputed or have been legally established.

6. The consignee may take out transport insurance with the supplier at his own expense. The insurance will be charged separately by the supplier at 1.5% of the net value of the goods or at least €1.00 per invoice. The transport insurance covers the risk of breakage.

7. The supplier has the right to withdraw from the contract if the recipient of the delivery has provided false information regarding his creditworthiness. The same applies in the event of an objectively lacking creditworthiness, insofar as the supplier's claim to performance is at risk. If the supplier's claim is at risk, the supplier may demand advance payments or securities in an appropriate amount instead of withdrawing from the contract.

If fulfilment has been agreed other than by cash payment, cash payment can be demanded. Any further claims for damages remain unaffected.

8. If the supplier claims damages from the recipient of the delivery for non-fulfilment - for example, in the event of partial or complete cancellation of the delivery - this shall amount to 15% of the net value of the goods. The recipient of the delivery is entitled to prove that no damage has occurred at all or that it is significantly lower than the above agreed flat rate. The assertion of a higher claim for damages by the supplier is not excluded, provided that the supplier can prove a higher damage in concrete terms.

IV. Simple and extended reservation of title

1. The items pertaining to the Supplies (‘Retained Goods’) shall remain the property of the Supplier until each and every claim the Supplier has against the Purchaser on account of the business relationship has been fulfilled. If the combined value of the Supplier's security interests exceeds the value of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interest if so requested by the Purchaser.

2. For the duration of the retention of title, the delivery recipient is prohibited from pledging or transferring ownership by way of security, and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership is not transferred to the customer until the customer has fulfilled its payment obligations.

3.a) If the recipient of the delivery resells goods subject to retention of title, he shall assign his future claims from the resale against his customers, along with all ancillary rights – including any balance claims – to the supplier as a precaution, without the need for any further special explanations. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the recipient of the delivery shall assign to the supplier, with priority over the remaining claim, that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by the recipient of the delivery.

b) If a legitimate interest is substantiated, the delivery recipient shall provide the supplier with the information and necessary documents required to assert the supplier's rights against the customer.

c) Until further notice, the delivery recipient is authorised to collect the assigned claims arising from the resale. The supplier is entitled to revoke the right of collection of the delivery recipient for good cause, in particular in the event of default in payment, suspension of payments, the opening of insolvency proceedings, the protesting of a bill of exchange or justified indications of over-indebtedness and impending insolvency on the part of the delivery recipient.

In addition, the supplier can, after prior warning and subject to a reasonable period of notice, disclose the assignment by way of security, realise the assigned claims and demand that the customer disclose the assignment by way of security.

4.a) The delivery recipient is permitted to process the reserved goods or to mix or combine them with other items.

The processing, mixing or combining (hereinafter referred to as ‘processing’) is carried out for the supplier. The recipient of the delivery shall store the new item for the supplier with the due care of a prudent businessman. The new item shall be deemed to be a reserved item.

b) If the goods are processed with other items not belonging to the supplier, the supplier shall be entitled to co-ownership of the new item in the amount of the share that results from the ratio of the value of the processed, mixed or combined (hereinafter ‘processed’) goods subject to retention of title to the value of the other processed goods at the time of processing. If the delivery recipient acquires sole ownership of the new item, the supplier and delivery recipient agree that the delivery recipient grants the supplier co-ownership of the new item created by processing in the ratio of the value of the processed reserved goods to the other processed goods at the time of processing.

c) In the event of the sale of the new item, the recipient of the delivery hereby assigns to the supplier, by way of security, his claim against the customer arising from the resale, together with all ancillary rights, without the need for any further special explanations. However, the assignment shall only apply to the amount corresponding to the value of the processed reserved goods invoiced by the supplier.

The share of the claim assigned to the supplier shall be satisfied with priority. With regard to the collection authorisation and the conditions for its revocation, no. 3 c) shall apply accordingly.

d) If the recipient of the delivery combines the reserved goods with real estate or movable property, he shall also assign to the supplier, without the need for further special explanations, the claim to which he is entitled as remuneration for the combination, with all ancillary rights, by way of security in the amount of the ratio of the value of the combined reserved goods to the other combined goods at the time of the combination.

5. In the event of attachments, seizures or other dispositions or interventions by third parties, the recipient of the delivery must notify the supplier immediately.

6. In the event of a breach of duty by the recipient of the delivery, in particular in the event of default in payment, the supplier shall be entitled to withdraw from the contract and take back the goods after the unsuccessful expiry of a reasonable period set for the recipient of the delivery to perform; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The recipient of the delivery shall be obliged to surrender the goods.

V. Deadlines for Deliveries and Default

1. Compliance with deadlines for deliveries requires the timely receipt of all documents, necessary permits and releases to be provided by the delivery recipient, in particular of plans, as well as compliance with the agreed terms of payment and other obligations by the delivery recipient. If these conditions are not fulfilled in time, the deadlines shall be extended accordingly; this shall not apply if the supplier is responsible for the delay.

2. if non-compliance with the deadlines is due to force majeure, e.g. mobilisation, war, riot or similar events, e.g. strike, lockout, the deadlines shall be extended accordingly.

3. If the supplier is responsible for the delay (hereinafter referred to as ‘Delay’) and the Purchaser has demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.5 % for each completed week of Delay, but in no case more than a total of 5 % of the price of that part of the Supplies which due to the Delay could not be put to the intended use.

4. Both claims for damages by the recipient of the delivery due to delayed delivery and claims for damages in lieu of performance that exceed the limits specified in no. 3 are excluded in all cases of delayed delivery, even after the expiry of any deadline set for the supplier to deliver. This shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, limb or health. The Recipient may only withdraw from the contract within the framework of the statutory provisions if the Supplier is responsible for the delay in delivery. The above provisions do not imply a change in the burden of proof to the detriment of the Recipient.

5. At the Supplier's request, the Recipient shall be obliged to state within a reasonable period of time whether the Recipient intends to withdraw from the contract due to the delayed Supplies or insists on the Supplies to be carried out.

6. If shipment or delivery is delayed at the request of the recipient by more than one month after notification of readiness for shipment, the recipient may be charged storage fees of 0.5% of the price of the delivery items for each month or part thereof, up to a maximum of 5%. The parties to the contract shall be free to prove higher or lower storage costs.

VI. Transfer of risk

1. Even in the case of freight-free delivery, the risk shall pass to the recipient as follows: a) in the case of deliveries without installation or assembly, when they have been shipped. At the request and expense of the recipient, deliveries shall be insured by the supplier against the usual transport risks; b) in the case of deliveries with installation or assembly, on the day of acceptance in the recipient's own operations or, if agreed, after a successful trial run.

2. If the shipment, delivery, start, installation or assembly, acceptance at the recipient's own premises or trial operation is delayed for reasons for which the recipient is responsible, or if the recipient is otherwise in default of acceptance, the risk shall pass to the recipient.

VII. Receipt

The recipient may not refuse to accept deliveries due to minor defects.

VIII. Defects

The supplier shall be liable for defects as follows:

1. all parts or services that show a defect within the limitation period, regardless of the operating time, shall, at the supplier's discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of the transfer of risk.

2. Claims for defects in quality shall become statute-barred after 12 months. This shall not apply where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), Sec. 479 para. 1 (right of recourse), and Sec. 634a para. 1 No. 2 (construction defects) of the German Civil Code (BGB) shall prescribe longer deadlines, as well as in cases of injury to life, limb or health, in the event of an intentional or grossly negligent breach of duty by the supplier and in the event of fraudulent concealment of a defect. The statutory provisions regarding suspension of expiry, suspension and restarting of deadlines shall remain unaffected.

3. The Recipient shall without undue delay notify the Supplier in writing of any Defects.

4. In the event of a notification of a Defect, the Recipient may withhold payments to an amount that is in a reasonable proportion to the Defect. The Recipient, however, may withhold payments only if the subject-matter of the notification of the Defect involved is justified and incontestable. If the notification of defects is unjustified, the supplier shall be entitled to demand compensation from the recipient for the expenses incurred.

5. The supplier shall first be given the opportunity to rectify the defect within a reasonable period of time.

6. If the rectification of defects fails, the recipient may – without prejudice to any claims for damages in accordance with Art. XII – withdraw from the contract or reduce the remuneration.

7. Claims for defects shall not arise in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent treatment, excessive use, unsuitable operating materials, defective construction work, unsuitable building ground or which arise due to special external influences which are not assumed under the contract, as well as non-reproducible software errors. If the recipient of the delivery or third parties carry out improper modifications or commissioning work, there shall be no claims for defects for these and the resulting consequences either.

8. Claims by the delivery recipient for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the delivery item has subsequently been taken to a location other than the delivery recipient's branch office, unless the transfer corresponds to its intended use.

9. The recipient of the delivery shall have rights of recourse against the supplier pursuant to Section 478 of the German Civil Code (BGB) (entrepreneur's recourse) only insofar as the recipient of the delivery has not entered into any agreements with its customer that go beyond the statutory claims for defects.

Furthermore, No. 8 shall apply accordingly to the scope of the right of recourse of the delivery recipient against the supplier in accordance with § 478 para. 2 BGB.

10. For claims for damages, Art. XI (Other Claims for Damages) shall apply. Further or other claims of the delivery recipient against the supplier and its vicarious agents due to a material defect than those regulated in this Art. VIII shall be excluded.

IX. Industrial Property Rights and Copyrights; Defects of Title

1. Unless otherwise agreed, the Supplier shall provide the delivery free of industrial property rights and copyrights of third parties (hereinafter referred to as ‘Property Rights’) only in the country of the place of delivery. If a third party asserts legitimate claims against the recipient due to the infringement of property rights by the deliveries made by the supplier and used in accordance with the contract, the supplier shall be liable to the recipient within the period specified in Art. VII No. 2 as follows:

a) The supplier shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for the supplier under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions.

b) The supplier's liability to pay damages is governed by Art. XI.

c) The above obligations of the Supplier shall apply only if the Recipient (i) immediately notifies the Supplier of any such claim asserted by the third party in written form, (ii) does not concede the existence of an infringement and (iii) leaves any protective measures and settlement negotiations to the Supplier's discretion.

If the recipient of the delivery ceases to use the delivery in order to minimise the damage or for other good cause, he is obliged to point out to the third party that the cessation of use does not constitute any acknowledgement of an infringement of property rights.

2. claims by the recipient of the delivery are excluded if he is responsible for the infringement of property rights.

3. Claims of the delivery recipient are also excluded if the infringement of the property right is caused by special instructions of the delivery recipient, by a use not foreseeable by the supplier or by the delivery being modified by the delivery recipient or being used together with products not supplied by the supplier.

4. In the event of property right violations, the provisions of Art. VIII No. 4, 5 and 9 shall apply accordingly for the claims of the delivery recipient regulated in No. 1 a).

5. In the event of other defects of title, the provisions of Art. VIII shall apply accordingly.

6. Further claims or claims other than those regulated in this Article IX of the recipient of the delivery against the supplier and his agents due to a defect of title are excluded.

X. Impossibility, Contract Adjustment

1. If delivery is impossible, the Recipient shall be entitled to claim damages unless the impossibility is not attributable to the Supplier. However, the Recipient's claim for damages shall be limited to 10 per cent of the value of the part of the delivery that cannot be put to the intended use due to the impossibility. This limitation shall not apply in the case of mandatory liability based on intent, gross negligence or loss of life, bodily injury or illness; this does not imply a change in the burden of proof to the detriment of the recipient of the delivery. The right of the recipient of the delivery to withdraw from the contract remains unaffected.

2. If unforeseen events within the meaning of Art. V No. 2 substantially change the economic significance or the contents of the delivery or have a material effect on the Supplier's business, the contract shall be adapted taking into account the principles of reasonableness and good faith. To the extent this is not economically justifiable, the Supplier shall have the right to rescind the contract. If the Supplier intends to exercise this right of withdrawal, it shall notify the Recipient of this without undue delay after becoming aware of the consequences of the event, even if an extension of the delivery period had initially been agreed with the Recipient.

3. Even if the Recipient has no right of withdrawal, the Supplier may, as a gesture of goodwill, credit the Recipient for returns. This requires the prior written consent of the supplier. The return shipment is at the sole expense of the consignee. Only those deliveries are included that are listed in the valid catalogue, in their original packaging, free of defects and still unopened. Project implementations and custom-made products will not be taken back. A credit note will be issued, subject to a deduction of 20% of the net value of the goods for processing costs, but not less than €20.00. For goods that have already been opened and in all other cases, the processing costs will be 30% of the net value of the goods, but not less than €30.00. The supplier can claim higher expenses if it can prove them.

XI. Miscellaneous Claims for Damages

1. The supplier shall not be entitled to any other claims for damages or reimbursement of expenses, regardless of the legal basis, in particular for breach of duties arising from the obligation and from unauthorised action.

2. This shall not apply in the case of mandatory liability, e.g. under the Product Liability Act, in the case of intent, gross negligence, loss of life, bodily injury or illness, or damage to health, or as a result of breach of fundamental contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the contractually typical, foreseeable damage, unless there is intent or gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the delivery recipient is not associated with the above provisions.

3. If the delivery recipient is entitled to claims for damages according to this Art. XI, these shall become time-barred upon expiry of the limitation period applicable to claims for material defects according to Art. VIII No. 2.

In the case of claims for damages according to the Product Liability Act, the statutory limitation provisions shall apply.

XII. Disposal of packaging materials

The supplier does not take back any packaging materials. The supplier has transferred the obligations incumbent on him under the Regulation on the Avoidance and Recycling of Packaging Waste to INTERSEROH AG by means of a framework agreement. The supplier will provide the recipient of the delivery with the names of local offices where packaging materials can be returned upon request.

XIII. Place of Jurisdiction and Applicable Law

1. If the recipient of the delivery is a merchant, sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the supplier's domicile. However, the supplier is also entitled to file suit at the domicile of the recipient of the delivery.

2. The legal relationships in connection with this contract shall be governed by German substantive law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XIV. Written Form

Oral side agreements to this contract have not been made. Amendments and/or supplements to this contract must be made in writing. Amendments and supplements shall be made by the management of the supplier. Oral agreements made by other persons who are not specifically authorised by the supplier are only effective if they are confirmed in writing by the management of the supplier.

XV. Severability Clause

The legal ineffectiveness of one provision shall not affect the legal effectiveness of the other parts of the contract. The parties to the contract undertake to replace an ineffective provision with an effective one that comes closest to the economic result and best corresponds to the purpose of the contract.