General Conditions of Sale and Delivery of the Company DIS-TEC GmbH & Co. KG

I. General – Scope of Application

1. Our conditions of sale and delivery apply exclusively. Supplementary or deviating conditions of purchase of the contracting party designated in the following as customer shall only become part of the contract where we expressly recognize same in writing.
2. Our conditions of sale and delivery also apply to future transactions with the customer.

II. Offers - Orders

1. Our offers are subject to change without notice.
2. A contract shall not be formed until we have given our confirmation in writing or the goods have been delivered.
3. Through placing an order the customer affirms his solvency/creditworthiness. Should we, after the formation of a contract, be informed of circumstances which call this into doubt, we are entitled to make the performance of the supply contract dependent upon a prepayment or bank guaranty or to withdraw from the contract. In this case, and in the case of transactions with new customers, shipment may also be effected by means of cash on delivery at the customer’s expense.
4. We are entitled to modify our goods in so far as this is reasonable to the customer.
5. We are entitled to withdraw from the contract, or to adjust the contract, if we are not supplied by our suppliers on time, or with goods of diverging quality, and we are therefore unable to process the order as agreed. In this case the customer will immediately be informed of the delivery problem and any advance performance reimbursed. The same applies to changes in official import conditions, significant changes in the exchange rate, carriage charges, raw materials price increases, interference through force majeure and so on. In such an event the customer may demand a reasonable offer to adjust the contractual conditions, if he claims this in writing within 14 days of our withdrawal from the contract.

III. Prices and Terms of Payment

1. Our current price lists at the time of the formation of the contract apply. Where delivery is made more than 4 months after the time of the formation of the contract, we are entitled to invoice on the basis of our current price lists at the time of the formation of the contract.
2. All prices are net ex warehouse plus packing and shipping charges.
   The statutory value added tax shall be added in each case.
3. Where cross-frontier transactions are involved, we do not bear the cost of any applicable taxes, duties, fees, etc. in the recipient country; we only bear customs charges where these have been taken into account in the offer – and where these charges have been raised since the formation of the contract, they shall be borne by the customer.
4. Payments have to be effected without reduction at the latest 14 days after date of invoice unless deviating periods of payment have been expressly agreed in writing.
5. We only ever accept payment by cheque, bill of exchange or other financial documents in fulfilment. The claim does not become extinguished until we have irrevocable disposition of the amount involved. All charges incurred in this context shall be borne by the customer.
6. Where the customer defaults on payment, we are entitled to demand, without evidence, interest on defaulted payment in the amount of 8% above the basic rate in the case of commercial customers and 5% above the basic rate in the case of consumers. The proof and assertion of higher damages remain unaffected.
   In the case of a default in payment in an order relationship all the customer’s payment commitments arising from the business relation shall become payable at once, regardless of other payment agreements and advance payment obligations, and shall be subject to interest as described above without further request for payment.
7. The customer may only offset with legally enforceable counterclaims, or counterclaims which we have recognized expressly and in writing. The customer is only entitled to a right to refuse performance where his counterclaim is based on the same contractual relationship.
8. We are entitled to practise intercompany offsetting.

IV. Shipment - Passage of Risk - Acceptance

1. Risk is transferred to the customer as soon as the consignment has been handed over to the person entrusted with the transport or has left our warehouse for the purpose of shipment. In the event that shipment is, through no fault of ours, not possible or the goods are, contrary to agreement, not collected, the risk is already transferred to the customer whenever notice is given that the goods are ready for shipment.
2. Where the customer so wishes, transportation insurance shall be taken out at his expense.
3. In the event that the customer does not take delivery of the goods after notice has been given that the goods are ready for shipment, or within an additional period of time allotted to him, or already expressly declares in advance that he does not wish to accept the goods, we may demand, without evidence, 30% of the purchase price as compensation in damages. The customer is at liberty to produce evidence of an actual slighter damage. The assertion of a greater damage remains unaffected.

V. Delivery Dates/Deadlines

1. Delivery dates and deadlines are considered approximate times unless they have been confirmed by us in writing as fixed times. The course of delivery dates and adherence to delivery deadlines presuppose that the customer has provided all the information required.
2. Should we default on delivery, the customer is obliged to allot an additional period of at least 3 weeks before being permitted to withdraw from the contract. Withdrawal from the contract is excluded in so far as the goods involve single-unit production or procurement and the customer does not prove that the delivery no longer interests him after the expiration of the additional period of time allotted, but gave notice of his temporally limited interest in the delivery when placing the order.
3. In the case of a delay we are entitled to carry out and charge for part shipments.
4. Where we fail to adhere to a delivery date or delivery deadline on account of force majeure or other unforeseeable or excusable circumstances, including labour disputes or delays in delivery on the part of suppliers or delays involving components of the goods, the delivery date shall be extended and the delivery deadline shall be postponed by the period of the disturbance plus a reasonable restart period.

VI. Duties of Inspection and Complaints

1. Where the customer is not a consumer, he is obliged to test the goods as soon as he has received them and to give written notice of any obvious defects immediately, but at the latest 5 working days after receiving the goods, otherwise the assertion of the warranty claim is excluded. To observe the deadline, it is enough to send off the notice of defects on time. The full onus of proof with regard to all claim pre-conditions, in particular the defect itself, to the existence of the defect upon delivery and the punctuality of the notice of defects lies with the entrepreneur.
2. Where the purchase of consumer goods is involved, the customer has to complain in writing about any obvious defects within 2 months of ascertaining that the condition of the goods does not conform to the contract. The deadline is only observed if the notice of defects reaches us within the time limit. Should the customer fail to make the complaint, the warranty rights become extinguished 2 months after the defect has been ascertained.
   This does not apply to malicious intent on the part of the seller. The limitation periods are not extended by the time limit for lodging a complaint. The onus of proof with regard to the point in time at which the defect was ascertained and also, in the case of used goods, the defective condition of the goods upon delivery lies with the customer. If the customer claims to have been persuaded to make a purchase as a result of being given incorrect information by a trader, the onus of proof with regard to the circumstances of his purchase decision lies with him.

VII. Warranty - Liability

1. Where the customer is not a consumer, the seller is responsible for choosing warranty through either the rectification of defects or substitute delivery.
2. In the case of the purchase of consumer goods the customer may choose between the rectification of defects and substitute delivery, where this does not entail unreasonably high costs and the alternative form of subsequent performance does not involve any significant disadvantages from the point of view of the customer.
3. If subsequent performance fails, the customer may choose either a reduction of the purchase price or, in the case of substantial defects, withdraw from the contract. The right of rescission is excluded whenever it is mainly the customer who is responsible for the rescission or the reason for the rescission arises during the default in accepting the delivery of goods on the part of the customer.
4. Where, following the failure of subsequent performance, the customer chooses to withdraw from the contract on account of a defect of title or material defect, he is no longer entitled to any damages on account of the defect.
   Where, in such an instance, the customer chooses compensation in damages, the goods shall remain with the customer whenever this is reasonable and the damages are limited to the difference between the purchase price and the value of the defective goods. This does not apply if the seller has been fraudulent.
5. Where the customer is not a consumer, the warranty for defects in respect of new goods is statute-barred after one year with the exception of liability on account of intention. In the case of consumers the period of limitation in respect of used goods is likewise one year. In the case of used goods the goods are carefully inspected before being put on sale, nevertheless liability on account of material defects is excluded.
6. We do not promise guarantees in the legal sense, i.e. those which go beyond warranty rights; manufacturers’ guarantees are passed on without any co-commitment on our part.
7. Where we or our agents are only guilty of a violation of our commitments through negligence, our liability is restricted to foreseeable damage typical of the contract.
8. Where the customer sells the goods unchanged or after processing, linking, mixing or fitting them with other objects, he shall indemnify us in our internal relationship for product liability claims by third parties in so far as he is responsible for the error which gives rise to the liability.

VIII. Retention of Title to Ownership

1. We retain ownership of the goods we supply until the satisfaction of all claims to which we are entitled, also in the future. In the case of a running account the retained ownership shall serve as security for each balance claim to which we are entitled.
2. The customer is only permitted to sell the goods in the due course of his business activities and only as long as he does not default on payment. The customer is not entitled to pledge the products, to transfer ownership by way of security or to enter into other dispositions which endanger our property. The customer shall assign to us already now all accounts receivable as a result of the resale; we already accept the assignment now.
   Where the customer sells the conditional goods after processing or after mixing, linking or fitting them into or with other goods, the assignment of accounts receivable is only considered to apply in the amount of that part which corresponds to the price agreed between us and the customer plus a safety spread of 20% of this price. In his own name the customer is authorized, until revocation, to collect receivables which have been assigned to us in trust on our behalf. We may revoke this authorization and the entitlement to resell whenever the customer fails to fulfil his obligations towards us.
3. Any processing or transformation of the conditional goods by the customer is always carried out for us. If the conditional goods are processed, linked, mixed or fitted with other objects, we acquire joint ownership of the new goods as a ratio of the invoice value of the conditional goods to the other processed, linked, mixed or fitted objects at the time they were processed, linked, mixed or fitted. Where the linking, mixing or fitting takes place in such a way that the customer’s things are considered the principal things, it is agreed that the customer transfers the joint ownership to us pro rate. The customer keeps the sole or joint ownership thus created for us free of charge.
4. The customer is obliged to furnish us at all times with all requested information concerning the conditional goods or claims which have been assigned to us from this.
   Where third parties take hold of, or have a claim to, the conditional goods, the customer has to notify us immediately, attaching the necessary documents. At the same time the customer has to draw the attention of the third party concerned to our retention of ownership. The customer shall bear the cost of averting such seizures and claims.
5. The customer is obliged to treat the conditional goods carefully for the duration of the retention of ownership and, where necessary, wait at his own expense.
6. If the realizable value of the conditional goods exceeds our total receivables by more than 20%, the customer is entitled to demand their release in this respect.
7. If the customer defaults on major obligations such as e.g. payments to us, we may take the conditional goods back regardless of other rights and use them elsewhere for the purpose of paying off debts due from the customer. In this case the customer has to immediately provide us or our representative with access to the conditional products and to give these back. Our request for the return of the goods in accordance with this provision does not constitute a withdrawal from the contract unless the consumer credit law is applicable.

IX. Data Protection

1. The customer authorizes us to process, to store and to evaluate the data received through the business relation according to the data protection law and agrees to us doing so.
2. We shall store and utilize the customer’s personal data for the purpose of handling the orders and any complaints. The customer’s e-mail address will only be used for informational letters regarding the orders and, where the customer so wishes, for internal newsletters.
3. No personal data of the customer’s will be passed on to third parties with the exception of service partners who require the data to be transmitted for order handling. In this case the scope of the transmitted data will be restricted to the minimum required.
4. The customer has a right to information as well as to correction, blocking and deletion of his stored data where these are no longer required for the handling of an order.

X. Applicable Law - Place of Jurisdiction - Separability

1. It is agreed that only the law of the Federal Republic of Germany will apply, excluding however the UN convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.
2. Where no consumer is a party to the contract, the sole place of jurisdiction for all disputes arising out of the contractual relationship shall be 28832 Achim, Germany. Place of performance is our company headquarters at the time of the formation of the contract (27299 Langwedel, Germany).
3. Should one of the provisions of these general terms and conditions, or other agreements in the contractual relationship, be or become invalid, this does not affect the validity or enforceability of the remaining provisions. The contracting parties are obliged to replace the invalid provisions by valid provisions which most approximate the invalid provisions economically. Where this is not possible, the invalid provisions shall be replaced by the general statutory regulations.