General Conditions of Sales and Delivery

General Terms of Sale 
General Terms of Business from 1 March 2010

1. General Provisions
We perform our deliveries, services and offers solely on the basis of the following conditions. These shall also apply to all future business relationships, even where these have not been expressly agreed again. These conditions shall be deemed to be accepted not later than when the goods or service is received. Confirmations to the contrary by the purchaser with reference to his own terms of business are hereby excluded. Any deviation from these conditions shall be effective only if we have given written confirmation. We would point out that we process the data of the purchaser relevant to business activity with him in accordance with the Federal Data Protection Act (Bundesdatenschutzgesetz).

2. Offer to contract and conclusion of contract

Our offers are subject to change at any time unless expressly stated otherwise. Samples and patterns are for outline guidance only and are non-binding. All contracts and agreements shall become binding only after we have confirmed the order in writing or made delivery; in the latter case the invoice shall replace the order confirmation. The designation “as previously”, as is popularly used when placing orders, shall apply in all cases only to the fulfilment of the order and not to the price. For the designation of products, the product designations used by GGK shall be definitive. Any additional designation using customers’ product names is non-binding. Our written and verbal advice on the use of products is non-binding – also with regard to any rights to trademarks by third parties – and does not exempt the purchaser from verifying independently that our products are suitable for his intended processes and purposes. Any deviating terms of purchase by the purchaser shall be binding only if and to the extent to which they have been expressly confirmed by us in writing. Should we remain silent in respect of conflicting conditions, this shall not constitute acceptance. Supplementary agreements and amendments to the contract shall require our confirmation in writing.

3. Prices and changes to prices

The prices we quote are for complete packaging units or containers from our factory, excluding packaging and shipping and the turnover tax legally applicable on the day of delivery. Our prices, unless stated otherwise, are subject to change and depend on the prevailing cost factors. Should changes occur to the cost factors prior to the day of delivery, e.g. owing to price rises for raw materials or wage increases, we reserve the right to make a corresponding adjustment to our prices. For orders in which no price has been agreed, the price applicable on the day of delivery shall apply. All selling prices and all offers and calculations are in euros (€) unless expressly stated otherwise. Should we generally reduce or raise the price of the same items in the time between order confirmation and delivery, the new price shall be applied. If it is necessary to notify the purchaser of a price increase, the purchaser may object within five days of receipt of the notification. In the event of an objection we have the option of withdrawing from the contract or of delivering at the originally agreed price. We must notify the purchaser of our decision within eight days.

4. Payment terms
The place of performance for payments is Greifenstein-Beilstein. Unless the method of payment has been otherwise agreed in an individual contract, the following shall apply: Payment within 10 days with 2% discount, calculated from the value of goods (excluding packaging, shipping and similar costs), net cash within 30 days of invoice date. No discount will be applied to tool costs or to orders with a net goods value of less than €300. The above discount will be offered only on the condition that all payment obligations arising from previous deliveries have been settled in full. Irrespective of receipt of goods and any notice of defects, payment must be made directly to us without exception. Our sales staff are not authorised to receive payments. Withholding of payments or offsetting is possible only where the purchaser’s counterclaim is undisputed or legally enforceable. If the payment period is exceeded, the purchaser shall be deemed to have defaulted without prior reminder. Bills of exchange or cheques are not valid as cash payment and are only acceptable as payment for collection. We assume no liability for punctual presentation or protest. In the event that bills of exchange are accepted, discount and expenses arising shall be charged for; the acceptance is subject to the right to demand payment in cash against return of the document. For cheque payments, discount can be applied only if the cheque has been received by us within the agreed period. No discount is applied in the event of accepting a bill of exchange. Bills of exchange are only accepted after prior agreement. If the payment due date is exceeded, we are entitled to charge maturity interest at a rate of 6%. In the event of default, we are entitled: to charge default interest at the standard bank lending rate, but at least 4% above the base rate given by the European Central Bank. In the event of default on payment, all other current invoices and/or amounts of bill become due and enforceable immediately. In the event of non-compliance with the conditions of payment or of circumstances that diminish the creditworthiness of the purchaser, we are entitled to demand immediate payment of all our claims, irrespective of the term of any bills received and not yet due. We are further entitled to supply any outstanding deliveries only against pre-payment or a security deposit. If such pre-payment or security deposit is not made after an appropriate period has been given, we are entitled to withdraw from the contract in respect of deliveries not performed, with the consequence that all claims by the purchaser in respect of the deliveries not performed shall expire. We are entitled to offset all our claims against the purchaser against all the purchaser’s claims against us in respect of deliveries or 
for other legal reasons.

5. Delivery and service deadlines, transfer of risk, minimum quantities
The place of fulfilment for our deliveries is our applicable factory or distribution centre. Shipping of the goods, which includes transportation to the means of carriage, is solely at the purchaser’s risk. The risk is transferred to the purchaser at the point at which the goods leave the factory/distribution centre, and irrespective of whether this occurs using our own personnel or external agents. From the transfer of risk at the above point in time, articles 278, 276 of the German Civil Code (BGB) do not apply. The delivery or service period shall be deemed to have been observed where the delivered goods have left our factory or notice of readiness for dispatch has been issued or where the service has been performed before that period has ended. The delivery periods are non-binding. An agreed delivery or service period shall be appropriately extended in the event of actions related to industrial action, in particular strikes or lockouts, or in the event of unforeseeable hindrances beyond our control, where such obstacles have a demonstrably significant influence over the supply of the goods for delivery or the performance of the service. This also applies where circumstances affect our suppliers or where deliveries to us of materials are insufficient through no fault of theirs and if they occur during our own delay. If the period is exceeded for an extended time, we are entitled – and, after a prior deadline extension has elapsed, the purchaser is also entitled – to withdraw from the contract. In serious cases the beginning and end of obstacles of this kind must be communicated to the purchaser as soon as possible. If the delivery or service period is exceeded the purchaser has the right to set an appropriate further period for the delivery or service, with the threat of refusal of performance, and in the event that the new period expires without results, to withdraw from the contract. The provisions of section 8 apply to claims for compensation due to delays. Goods reported as ready for shipment must be called forward immediately on expiry of the delivery period; if this does not occur, we are entitled, at our discretion, to ship them or to store them at the purchaser’s cost and risk; the same shall apply where we are unable to ship for reasons beyond our control. Once reported as ready for shipment, the goods are considered delivered and can be billed for. The method of carriage, the carrying agent and the route of transportation, the type and amount of protection, the selection of a shipping agent or carrier and the packaging shall be left to our decision. This is decided at our discretion and with due care, with the exclusion of any liability. The goods are only insured at the express wish of the purchaser and at his expense. Partial deliveries are permitted. We are free to over-supply or under-supply by 10%, or in the case of custom-made goods by 20%, with the appropriate calculation taken into account. Goods with net value €1000 and above are delivered free to the point of receipt. Carriage costs shall be borne by the purchaser irrespective of the invoice amount. Orders for minimum quantities that do not correspond to a packaging unit or container quantity are processed with a 15% handling supplement. Orders with a net goods value of under €150 are subject to a handling supplement of €10. When the goods are transferred to the carrier or haulier, but not later than when they leave the factory or distribution centre, the risk in the goods passes to the purchaser in all cases unless otherwise agreed.

6. Samples

Samples requested by the purchaser are only supplied against a charge.

7. Quality indications

Variations that are customary in the trade in respect of failure, weight, percentages, mixing ratios and colours shall be regarded only as approximate averages and do not entitle the purchaser to make complaints about the delivery. Illustrations, dimensions and weights in our lists, documents, catalogues, company standards, offers and order confirmations are permissible within tolerances that are customary in the industry or in accordance with the applicable standards. No liability is accepted for their observation. We reserve the right to make technical modifications at any time.

8. Checking the goods, complaints and liability
The purchaser is obliged to check our goods for technical fitness for purpose and freedom from faults. Complaints due to defects in the goods or owing to incorrect or incomplete delivery can only be asserted before any processing of the goods takes place. The time limit for asserting claims is limited to eight days; this also applies in case of single deliveries from a successive delivery contract. The complaint must be made in writing. If the purchaser neglects to make this notification, the goods shall be deemed to have been accepted unless the defect is of a kind that could not have been detected within the time limit by the most stringent checking. In the event of defects of this type, notification must be made within eight days of discovery of the fault. The six-month limitation period for liability claims by the purchaser begins also in the latter case at the point of transfer of the goods. In the event of punctual and justified complaint by the purchaser in respect of the goods, the purchaser is entitled to cancel the purchase if we do not declare ourselves willing to provide a replacement or to resolve the defect within a reasonable time, or if the replacement delivery or resolution of the defect is not successful. Any further claims by the purchaser, in particular all types of claim for price reduction or damages, are excluded.

9. Drafts, drawings, designs, moulds, tools
We claim the right in all cases to exclusive production of the objects of all drafts, drawings, designs, moulds or tools we provide. Such documents and tools, and the utilisation or communication of their contents, may not be passed to another or duplicated unless specifically authorised. We will claim damages for any violation of this rule. We reserve all rights for the granting of patents and for the registration of designs. The purchaser assumes the risk that the manufacture and delivery of objects that have been produced to his specifications does not infringe the trademark rights of any third party. Moulds, templates and other devices remain exclusively our property even where their costs have been borne by the purchaser. Where we produce or procure models, moulds, tools and other forming devices on behalf of the purchaser, we will indicate the costs for these separately in the invoice. Since these proportional costs do not cover our outlays for drafting, construction, running in or know-how, the models, moulds and tools and their accessories remain our property. The same applies for alterations and for replacement models and tools and subsequent moulds. Tool and mould costs, etc., exclude the applicable turnover tax and are payable on issue of the invoice with no discount. If more than three years have passed since the last delivery of articles made using these aids, we are no longer obliged to store them.

10. Retention of title
Until full payment is received for the delivery and all other obligations arising from the business relationship are settled we remain the owner of the delivered goods. The purchaser is however entitled to dispose of or further process the goods within the framework of the normal course of business, provided that he indicates our retention of title. This permission does not apply to the transport boxes supplied, which remain our property at all times and are only provided to the purchaser on a loaned basis for the purpose of transporting our own goods; these must be returned at any time at our request. No pledging or assigning of these goods as a security in favour of third parties is permitted without the agreement of the Seller. If the purchaser pledges these goods to a third party he must notify us of this immediately. The purchaser does not gain ownership under article 950 of the German Civil Code over the resultant new goods by processing the reserved goods. The processing is performed by the purchaser for the seller, without obligations arising from this for the seller. If the goods are combined or mixed with other objects, we obtain joint ownership of the new objects in proportion to the value of our reserved goods to the other processed goods at the time of the processing. The purchaser hereby assigns the claim from the resale of the reserved goods to the seller to the degree that the goods are processed. The assignment will be restricted to the invoice value of the reserved goods that have been processed into the new item. The seller will not collect the assigned claims so long as the purchaser meets his payment obligations. The purchaser is however obliged to name the garnishee to the seller on request and to notify the garnishee of the assignment. He is entitled to collect the debts himself for so long as he continues to meet his payment obligations and the seller does not instruct him otherwise. The retention of title shall also remain if individual claims of the seller are included in a current account and the balance is struck and acknowledged; unless the balance is cleared. The permission of the purchaser to process or to dispose of the reserved goods in the normal course of business shall end should he cease payment, or if a petition for bankruptcy is filed in respect of his assets or an application is made for the institution of settlement proceedings to avert bankruptcy. In such a case the purchaser is obliged to surrender the unprocessed reserved goods through us at our first request. The seller will credit the purchaser with the proceeds obtained for the unprocessed returned goods at the best price he can obtain (article 254 BGB); a revocation or demand for surrender of the unprocessed reserved goods to the seller shall not represent withdrawal from the sales contract. The seller shall release the securities due to him under the above provisions if their value, in consideration of the value added by the purchaser, exceeds the claims to be secured by 20%. The seller must be notified of any pledging of debt immediately, including details of the pledgee. The purchaser is obliged, as soon as he ceases payment, and immediately after notification that he has ceased payment, to provide the seller with a list of reserved goods still held, including where these have been processed, and to send the list of claims to the third-party debtors together with credit memos.

11. Contingent liabilities

Should the seller enter into contingent liabilities in the purchaser’s interest (payment by cheque/bill of exchange), the prolonged and extended retention of title shall remain until the seller is fully released from these liabilities.

12. Right to withhold performance
If considerable existing arrears in payments by the purchaser at the time of signing the contract or his poor financial situation becomes known to us only after the contract has been agreed, we are entitled to withhold delivery of goods or services to which we are obliged until the agreed consideration is paid or the securities corresponding to the performance are provided.

13. Additional conditions for custom-made products

Custom-made products are all contracts performed on the basis of customer-specific drawings, specifications, samples, etc. Where we deliver in accordance with drawings, specifications, samples etc. these shall only be binding for us as concerns shaping/styling and technical realisation. For dimensional stability, the data set out in the appropriate DIN sheets shall apply. Definitive for quality and execution are the outturn samples that we have submitted for appraisal prior to delivery. An unconditional acceptance of the outturn samples by the purchaser excludes any later complaints, so long as the delivered items conform to the approved outturn samples. We however accept no responsibility for the intended purpose of use. The purchaser must deliver reinforcement parts at no charge and carriage paid to our factory at his own risk and with a quantity surcharge of 3-10% to cover any rejects, on time and in perfect condition. In this case the delivery period does not begin, without prejudice to the provisions of section 5 of our General Terms of Sale, until we receive the reinforcement parts. Where a third party forbids us to manufacture or supply, with reference to a protective right accruing to it, objects that are manufactured to the purchaser’s drawings, specifications, samples etc, we are - without being obliged to check the legal relationship – entitled to suspend manufacture and supply, excluding any claim for compensation by the purchaser, and to demand the refund of the costs incurred. Further claims for compensation from our side remain unaffected. 

14. Place of jurisdiction

The place of jurisdiction for all mutual demands and obligations and for disputes concerning cheques and bills of exchange, without regard to the place of payment, and for annulment and reduction processes, without regard to the party in whose hands the dispute is, is agreed to be Weilburg. We are also entitled to litigate at the registered office of the purchaser. If the contractual partner suspends payment or if an application is filed for an insolvency proceedings in respect of his assets or for an extrajudicial settlement proceedings, we are entitled to withdraw from that part of the contract that has not been fulfilled. German law shall apply. The application of the UN Convention of 11 April 1980 on contracts for the purchase of goods is excluded. 

15. Final provisions

Should a provision of these General Terms of Business prove ineffective or the conditions be incomplete, the effectiveness of the remaining terms of business shall remain hereby unaffected. The ineffective or incomplete regulation shall rather be considered replaced by such a clause as would come as closely as possible in economic terms and in a legally permitted way to the regulations originally intended by the parties.

GGK GmbH & Co. KG