§ 1

(1) Our Standard Terms and Conditions

of Business apply exclusively. We do

not accept terms and conditions of

the Purchaser that conflict with or differ

from our Standard Terms and

Conditions of Business, unless we

have given our explicit written consent

to their applicability. Our Terms

and Conditions of Business shall apply,

even if we unconditionally make

delivery to the Purchaser knowing of

its terms and conditions that conflict

with or differ from our Terms and

Conditions of Business.

 

(2) All agreements made between us

and the Purchaser for the purpose of

implementing this contract are recorded

in writing in this contract.

(3) Our Standard Terms and Conditions

of Business apply only in relation to

entrepreneurs as defined by section

310 (1) of the German Civil Code

[BGB].

(4) Our Standard Terms and Conditions

of Business shall also apply to all future

transactions with the Purchaser.

 

§ 2

Tender - Tender Documents - Conclusion

of Contract

(1) Our tenders are subject to change

without notice and are non-binding,

unless otherwise indicated in the

acknowledgement of the order.

(2) In order to take effect, declarations of

acceptance and all purchase orders

must be confirmed or acknowledged

by us in writing or by telegraph, telefax

or telex. The same applies to

supplements, amendments and collateral

agreements.

(3) Drawings, illustrations, indications of

weights and dimensions and other

performance data shall only be binding,

if explicitly agreed upon in writing.

(4) We reserve ownership rights and

copyrights in illustrations, drawings,

calculations and other documents.

These may not be made accessible

to third parties. This particularly applies

to written documents designated

"confidential". The Purchaser

shall require our explicit written consent

prior to passing on such documents

to third parties. The obligation

of confidentiality shall continue to

apply even after this contract has

ended. This obligation shall expire

when and in so far as the manufacturing

know-how contained in illustrations,

drawings, calculations and

other documents handed over has

become public knowledge.

(5) The conclusion of the contract is subject

to the precondition that our suppliers

supply us properly and in due

time. This applies only where we are

not responsible for failure to supply,

particularly where a congruent covering

transaction has been entered into

with our supplier.

(6) The Customer shall without undue

delay be informed of non-availability

of the service. Any consideration

paid shall be refunded without undue

delay.

(7) The scope of delivery shall be exclusively

based on our written acknowledgement

of the order.

 

§ 3

Sonderanfertigungen / Vorlagen / Material

Sec. 3

Special Designs / Submissions / Material

(1) Special designs, i.e. purchase orders

from the Customer where the service

to be rendered by us differs from the

Customer's previous orders in respect

of dimensions, weight, colour,

print format etc., and/or new orders

shall be subject to a written purchase

order, including detailed specifications

of materials and dimensions

along with print format templates.

(2) In so far as we deliver items made on

the basis of drawings, models, samples,

print templates or other documents

handed over by the Purchaser

or using tools or components from

the Purchaser, the Purchaser shall

warrant that no third-party industrial

property rights will be infringed. Such

documents handed over by the Purchaser

shall be taken as a basis by

us. The Purchaser shall be liable for

accuracy of content, feasibility and

completeness, without us being under

any obligation to check such

documents (section 14 remains unaffected).

This does not apply to data

that cannot be processed, nor to data

that are unreadable. The Purchaser

shall bear additional expenses arising

due to the Purchaser requesting

modifications after we have sent our

acknowledgement of the order or due

to the need for additional services on

account of unsuitable or incomplete

submissions. Prior to transmitting data,

the Purchaser shall use the latest

updated appropriate anti-virus pro. The Purchaser shall be

solely responsible for protecting and

backing up data. If, by referring to industrial

property rights, third parties

prohibit us from manufacturing and

delivering in particular, we shall -

without being under any obligation to

examine the facts and the legal position

- be entitled to discontinue all

further activities in this respect and

claim compensatory damages from

the Purchaser. The Purchaser shall

without undue delay indemnify us

against all third-party claims in this

connection.

(3) Material delivered to us by the Purchaser

for processing or re-working

shall become our property when

handed over to us.

(4) During processing, we shall continue

to own material handed over by the

Purchaser and the final product

made out of this. Processing carried

out by us shall occur in our own

name.

(5) We accept no liability whatsoever for

loss of or damage to submissions

through no fault of our own. The Purchaser

shall take out corresponding

insurance itself at its own risk.

(6) Products to which the Purchaser is

entitled, particularly data and data

carriers, shall be filed by us after the

final product has been handed over

to the Purchaser or its agents in performance

only according to explicit

agreement and against payment of a

separate fee. The Purchaser shall be

responsible for insuring such items.

(7) If test parts necessary for testing, or if

moulds, tools, equipment etc. for

manufacturing, are obtained by us or

made by us or on our behalf, the

moulds, tools, equipment etc. shall

always remain our property. We shall

be entitled to invoice the Purchaser

for the cost of obtaining or making

the aforementioned parts (cf. section

3 (2)). The total sum of reimbursable

costs shall be due and payable upon

receipt of the invoice. Other rights

such as rights of possession, rights

of use, rights of exploitation, copyrights

etc. shall always remain with

us.

 

§ 4

The Purchaser's Duties to Assist

(1) During the entire contractual period,

the Purchaser shall be obliged to

promptly process technical problemsolving

proposals, drawings, concepts

and plans through personnel

with suitable professional backgrounds,

unless otherwise agreed

upon.

(2) In so far as test material is necessary

for carrying out trial runs or for carrying

out an acceptance test on the delivery

item, the Purchaser shall make

this material available to us in due

time at our works at its expense, in

the quantity that we consider necessary

and in faultless quality.

(3) The above provision shall not affect

the Purchaser's other duties to assist.

 

§ 5

Prices

(1) Unless otherwise indicated in our

acknowledgement of the order, our

prices apply "ex works". We reserve

the right to charge at the prices and

discounts valid on the day of delivery.

Our prices are quoted excluding

packaging, freight charges, insurance,

customs duties, acceptance

inspection costs and other expenses.

(2) Our prices do not include statutory

value-added tax. Value-added tax

shall be separately indicated in the

invoice at the statutory rate on the

day of invoicing.

(3) If test parts necessary for testing, or if

moulds, tools, equipment etc. for

manufacturing, are obtained by us or

made by us on our behalf, we shall

be entitled to invoice the Purchaser

for the cost of obtaining or making

the aforementioned parts. We shall

be entitled to charge for sketches,

drafts, specimens, test prints, proofs,

modifications to data delivered or

transmitted and for similar preliminary

work ordered by the Purchaser.

(4) An appropriate advance payment

may be demanded for extraordinary

preliminary work.

(5) We reserve the right to alter our prices

accordingly, if changes in costs

arise after the conclusion of the contract,

particularly as a result of collective

wage agreements or changes in

prices of materials. We shall furnish

the Purchaser with proof thereof on

request.

 

§ 6

Payment Terms

(1) Unless otherwise indicated in the

acknowledgement of the order, the

purchase price shall be due and

payable net (without any deduction)

within 14 days of delivery. The deduction

of a cash discount shall be

subject to special written agreement.

Any agreement on a cash discount

shall not apply to freight charges,

postage, insurance or other shipping

expenses.

(2) Bills of exchange and cheques shall

only be accepted on the basis of an

explicit agreement and always only

as conditional payment. Acceptance

of a bill of exchange or a cheque

shall not be deemed deferment of

payment of the fee. The term of a bill

of exchange or a cheque may not be

shorter than ten days and may not be

longer than two months. Credits by

way of a bill of exchange or a cheque

shall always be deemed subject to

receipt and only with the value date

being the day when the equivalent

amount is freely at our disposal. We

assume no liability for simultaneous

submission, nor for protesting, notifying

or returning in the event that a bill

of exchange or a cheque is not honoured.

Discounting or collection

charges shall be borne by the Purchaser

and shall be due and payable

immediately in cash without any deduction.

(3) If payment is not made by the date

fixed above or the date agreed upon

in the acknowledgement of the order,

we shall be entitled to charge default

interest at the rate of 10 % p.a.

above the respective discount rate

(section 247 of the German Civil

Code [BGB]) without further requesting

payment and without giving notice

of default. If we are able to prove

that default caused a higher loss, we

shall be entitled to claim this. The

Purchaser shall be entitled to prove

to us that we incurred no loss or a

considerably lower loss as a result of

default in payment. This shall not affect

the right to claim further com-

(4) The day when the invoiced amount is

freely at our disposal shall be deemed

the date of receipt of payment.

(5) The agreed price shall be due and

payable immediately, if the Purchaser

defaults on other receivables in relation

to us, or if we become aware

that its financial situation is uncertain

due to insolvency, bankruptcy, a

court settlement or out-of-court settlement,

a protest in respect of a bill

of exchange, lawsuits or other circumstances

affecting its financial situation,

for example if we receive unfavourable

reports about the Purchaser.

If the performance owed by

us has not yet been rendered at the

time such circumstances become

known, we shall be entitled to demand

advance payment, withhold

goods not delivered and discontinue

further work.

(6) We shall be entitled to cancel the

contract and claim compensatory

damages, if the Purchaser defaults

on payments due, a bill from the Purchaser

is protested, the Purchaser's

financial circumstances significantly

deteriorate or we receive unfavourable

reports about the Purchaser (for

example about default in payment or

protests in respect of a cheque or a

bill of exchange). Prior to making further

deliveries, we shall in such cases

be entitled to demand advance

payment in cash and immediately

withdraw from circulation at the Purchaser's

expense all accepted bills of

exchange and other bills of exchange

and cheques in circulation and demand

cash payment for these.

(7) The Purchaser shall have rights of

set-off only where its counterclaims

have been established by a final and

non-appealable court judgement, are

undisputed or have been acknowledged

by us. Additionally, the Purchaser

shall be authorised to exercise

a right to withhold payment only

to the extent that its counterclaim is

based on the same contractual relationship.

 

§ 7

Dispatch - Packaging

(1) Dispatch shall occur ex place of delivery

on the Purchaser's account.

(2) Unless otherwise agreed upon,

packaging shall be charged to the

Purchaser at cost price and shall not

be taken back.

(3) Delivery shall be for the Purchaser's

account and at the Purchaser's risk,

even if part deliveries are made, or

we have agreed to bear other costs,

such as for example shipping expenses

or cartage expenses. If no

specific dispatch instructions are given

or reserved in the case of purchase

orders, dispatch shall be effected

at our best discretion without

assuming any responsibility for carriage

at the lowest price or in the

quickest way. Particularly with regard

to consignments to foreign countries,

we assume no liability for compliance

with customs regulations and/or

packaging regulations. Late instructions

or transport blockades shall entitle

us to immediately charge for

goods ready for dispatch, store such

goods in the open air at the Purchaser's

risk and expense or hand

them over to a forwarder. With this,

our obligation to make delivery shall

be deemed fulfilled. We shall take

out insurance only at the Purchaser's

explicit request and expense.

(4) Part deliveries shall be permissible.

 

§ 8

Sec. 8

Passage of Risk

(1) Unless otherwise indicated in the

acknowledgement of the order, delivery

"ex works" shall be deemed

agreed upon.

(2) Risk shall pass to the Purchaser no

later than once the consignment has

been handed over to the carrier or

has left our warehouse for the purpose

of dispatch. This shall apply,

even if a delivery is made in individual

parts.

(3) If dispatch is delayed due to circumstances

for which the Purchaser is

responsible, particularly if the Purchaser

breaches its duties to assist,

or if the Purchaser defaults on acceptance,

the risk of accidental destruction

or accidental deterioration

of the delivery item shall pass to the

Purchaser on the day when the

goods are ready for dispatch. However,

we shall be obliged to take out,

at the Purchaser's request and expense,

the insurance requested by

the Purchaser.

 

§ 9

Delivery Period

(1) The delivery period stated by us shall

begin when our acknowledgement of

the order is sent, but not before all

technical questions have been

cleared up, the documents, permits

and clearances to be obtained by the

Purchaser have been submitted and

any agreed down payment has been

received.

(2) Except where otherwise explicitly

agreed upon, the delivery period

stated by us shall not be binding.

(3) The delivery period shall be deemed

met, if the delivery item has left our

works or our warehouse, or notification

of readiness for dispatch has

been given by us, before the delivery

period expires.

(4) The delivery period shall be appropriately

extended if and as long as

the Purchaser fails to meet its duties

to assist, particularly the duties under

section 4, or if delays are caused by

other circumstances for which the

Purchaser is responsible. The right to

plead non-performance of the contract

remains reserved.

(5) If the Purchaser defaults on acceptance

or culpably breaches other

duties to assist, we shall be entitled

to claim compensation for damages

resulting to us in this respect, including

any and all additional expenses.

Further claims remain reserved.

(6) Provided that the prerequisites under

subsection (4) are met, the risk of

accidental destruction or accidental

deterioration of the purchase item

shall pass to the Purchaser at such

time as the Purchaser has defaulted

on acceptance or payment.

(7) a) Even where periods and dates have

been bindingly agreed upon, we shall

not be responsible for delays in delivery

or performance due to force

majeure or due to events that make it

considerably more difficult or impossible

to make delivery. Such events

include in particular strike, lockout,

official orders or court orders etc.,

even if these occur at our suppliers

or their subcontractors. This shall also

apply, if and in so far as it is considerably

more difficult or impossible

for us to manufacture the items ordered

due to extreme weather conditions,

particularly for technical reasons

(for example if it is impossible

to print due to a lack of colour adhesion

in high temperatures). Such delays

in delivery and performance

shall entitle us to defer delivery by

the duration of the impediment plus a

reasonable start-up period. In important

cases, we shall notify the

Purchaser of the commencement

and cessation of such impediments

as soon as possible.

b) Additionally, if it becomes impossible

for us to perform the contract due to

force majeure, lockout or official orders

or court orders etc., the delays

in delivery and performance mentioned

in section 9 (7) letter a) shall

entitle us to cancel the part of the

contract not yet performed or the

whole contract.

c) If the impediment lasts longer than

three months, the Purchaser shall be

entitled to cancel the part of the contract

not yet performed after having

fixed a reasonable additional period.

The Purchaser may only cancel the

whole contract, if it has no interest in

partial performance. If the delivery

period is extended, or if we are released

from our obligation, the Purchaser

shall not have the right to derive

any damage claims from this.

(8) If dispatch is delayed at the Purchaser's

request, the Purchaser shall, as

from one month after notification of

readiness for dispatch, be charged

for storage costs incurred, but in the

case of storage at our works at least

€ 10.00 per Europallet for each

month (if other auxiliary storage devices

are used, the charge shall be

converted accordingly based on

space). The Purchaser reserves the

right to prove that no damages at all

have arisen or that the damages incurred

were significantly lower than

the flat rate. After a reasonable set

period has expired to no avail, however,

we shall at our option also be

entitled to sell the item to a third party

and supply the Purchaser within a

reasonably extended period.

(9) In so far as the underlying contract is

a transaction where time is of the essence,

legal regulations shall apply in

respect of liability due to default in

delivery. The same shall apply, in so

far as the Purchaser is entitled to

claim that it no longer has any interest

in the further performance of the

contract due to default in delivery for

which we are responsible.

(10) Legal regulations shall equally apply,

in so far as default in delivery is due

to an intentional or grossly negligent

breach of contract for which we are

responsible. Fault on the part of our

representatives or agents in performance

shall be attributable to us. Unless

default in delivery is not due to

an intentional breach of contract for

which we are responsible, our liability

for compensatory damages shall be

limited to foreseeable damages typically

occurring.

(11)a)In so far as default in delivery for

which we are responsible is due to a

culpable breach of a fundamental duty

under the contract, legal regulations

shall apply. Unless otherwise

provided below, our liability shall

however in any event be limited to

foreseeable damages typically occurring.

b) In the case of slight negligence, the

Purchaser's entitlement to damages

caused by delay shall be limited to

5 % of the agreed price.

(12) In so far as default in delivery is due

to a breach of a non-fundamental duty

under the contract by slight negligence,

liability on our part for default

in delivery shall be excluded.

 

§ 10

Retention of title

(1) Delivered goods shall remain our

property until the receipt of all payments

arising from the supply contract

and the rest of the business relationship

with the Purchaser, including

all subsidiary claims such as interest

and expenses, even where our

receivables do not arise until a future

date. If the Purchaser acts in breach

of the contract, particularly if it defaults

on payment, we shall be entitled

to reclaim possession of the

goods delivered. Reclaiming possession

of the delivery item by us shall

not constitute cancellation of the contract,

unless we have explicitly declared

so in writing. Levying execution

on the delivery item by us shall

always constitute cancellation of the

contract. We shall be authorised to

sell the delivery item after having reclaimed

possession of it. The proceeds

from such a sale shall be credited

against the amounts owed by the

Purchaser, less reasonable costs in

connection with the sale.

(2) The Purchaser shall be obliged to

treat the delivery item with care. In

particular, the Purchaser shall be

obliged to adequately insure it at its

own expense against fire damage,

water damage and theft at replacement

value. In so far as servicing and

inspection work is necessary, the

Purchaser must carry out such work

in due time at its own expense.

(3) If the delivery item is taken in execution

or otherwise seized by a third

party, the Purchaser shall notify us in

writing without undue delay, to enable

us to bring an action pursuant to

section 771 of the Code of Civil Procedure

[ZPO]. In so far as the third

party is unable to reimburse us for

court costs or out-of-court costs in

connection with an action pursuant to

section 771 of the Code of Civil Procedure

[ZPO], the Purchaser shall be

liable for the loss incurred by us.

(4) The Purchaser shall be entitled to

resell the delivery item in the ordinary

course of business. However, the

Purchaser hereby assigns to us, in

the sum of the final invoiced amount

(including value-added tax) of our receivable,

all receivables accruing to it

against its customers or third parties

from reselling, regardless of whether

the purchase item has been resold in

an unprocessed or a processed

state. The Purchaser shall remain

authorised to collect such a receivable

even after it has been assigned.

This shall not affect our authority to

collect the receivable ourselves.

However, we undertake not to collect

the receivable as long as the Purchaser

meets its payments from the

proceeds received, the Purchaser

does not default on payment and, in

particular, no petition to commence

bankruptcy or composition or insolvency

proceedings is filed, and no

payments are suspended. If this is

the case however, we may demand

that the Purchaser notify us of the

receivables assigned and their debtors,

provide us with all information

necessary for collecting the receivables,

hand over to us related documents

and notify the debtors (third

parties) of the assignment of receiv-

(5) Processing or remodelling of the delivery

item by the Purchaser shall always

be carried out on our behalf. If

the purchase item is processed with

other items not belonging to us, we

shall acquire co-ownership of the

new item in the ratio of the value of

the purchase item (final invoiced

amount, including value-added tax)

to the value of the other processed

items at the time of processing. Incidentally,

the item created by processing

shall be governed by the

same terms and conditions as those

applicable to the delivery item delivered

under reservation of ownership.

(6) If the delivery item is inseparably

mixed with other items not belonging

to us, we shall acquire co-ownership

of the new item in the ratio of the

value of the delivery item (final invoiced

amount, including valueadded

tax) to the value of the other

mixed items at the time of mixing. If

mixing occurs in such a manner that

the Purchaser's item is to be regarded

as the main item, it shall be

deemed agreed that the Purchaser

shall transfer co-ownership to us on

a pro-rata basis. The Purchaser shall

hold in safekeeping for us the solely

owned or jointly owned property created

in such a manner.

(7) As security for our receivable against

the Purchaser, the Purchaser also

assigns to us receivables accruing

against a third party as a result of the

purchase item being connected to

real property.

(8) We undertake to release, at the Purchaser's

request, security items to

which we are entitled to the extent

that the realisable value of our security

items exceeds by more than

10 % the receivables to be secured.

We shall be responsible for choosing

the security items to be released.

 

§ 11

Duty to Examine and Give Notice of Defects

(1) For all our deliveries and services the

statutory duties in respect of examination

and defect notification apply.

In case of perceivable defects, incorrect

deliveries, or quantity deviations

the notification of complaint must be

raised immediately, but within five

days at the latest. Clause (2) remains

unaffected. The period of time in

case of self-evident defects is commencing

with the day of delivery, in

case of not perceivable defects with

the time of discovery; regarding the

timeliness the receipt of the defect

notification by us is decisive. Defect

notifications are effective only in written

form.

(2) Excess or short deliveries of up to 10

% of the quantity ordered are customary

in this branch of business

and, therefore, cannot be complained

about. The actually delivered quantity

is invoiced.

 

§ 12

Warranty

(1) The Purchaser's warranty rights shall

be subject to the precondition that

the Purchaser has properly and duly

met its duties to examine and give

notice of defects pursuant to section

11.

(2) We give no warranty for damages

arising from unsuitable or improper

use, incorrect assembly and/or

commissioning or modifications to

delivered goods by the Purchase or a

third party, normal wear and tear, in

correct or negligent treatment or

handling, unsuitable operating material,

replacement materials, chemical,

electrochemical or electrical influences,

unless we are responsible for

this.

(3) With regard to colour reproductions

in all methods of manufacture, slight

deviations from the original may not

be complained about. The same applies

to comparisons between other

submissions (e.g. digital proofs, final

proofs etc.) and the final product.

(4) a) If there is a defect for which we are

responsible, we shall first be entitled

to rectification or replacement (also

collectively referred to as "supplementary

performance") solely at our

option.

b) The Purchaser shall not be entitled to

supplementary performance, if a defect

for which we are responsible

does not reduce, or only insignificantly

reduces, the value or suitability of

the delivery item.

c) The Purchaser shall, according to a

corresponding agreement, give us

the time and opportunity necessary

for carrying out all actions in connection

with supplementary performance

that we consider necessary at our

reasonable discretion. The Purchaser

shall not be entitled to rectify a defect

itself or through a third party and

claim from us reimbursement of necessary

costs.

d) In the event of supplementary performance,

we shall be obliged to

bear all expenses necessary for the

purpose of rectifying defects, particularly

the cost of carriage, transport,

labour and materials, unless and in

so far as such costs are increased as

a result of the delivered goods having

been taken to a place other than

the place of performance.

Replaced parts shall become our

property.

(5) If supplementary performance fails, if

it would be unreasonable to expect

the Purchaser to render supplementary

performance, if to no avail the

Purchaser sets us a reasonable period

within which to render supplementary

performance, or if it is unnecessary

to set such a period in the cases

defined by law, the Purchaser shall

be entitled to statutory rights subject

to compliance with legal prerequisites

and the terms set out below.

a) In the event of a minor breach

of contract, particularly in the

event of minor defects that only

insignificantly reduce the value

or suitability of the delivery

item, the Purchaser shall not

be entitled to cancellation of

the contract or a price reduction.

b) If, after supplementary performance

has failed or after the

Purchaser has unsuccessfully

set us a period within which to

render supplementary performance,

the Purchaser chooses

to cancel the contract on account

of a defect in quality

and/or title, the Purchaser shall

not be entitled to additionally

claim compensatory damages

on account of the defect. The

same shall apply, if it would be

unreasonable to expect the

Purchaser to render supplementary

performance or if it is

unnecessary to set a period

within which to render supplementary

performance.

c) If the Purchaser chooses compensatory

damages in the cases

mentioned in subsection (5)

letter b), the goods shall remain

with the Purchaser, if this is

reasonable for the Purchaser.

Compensatory damages shall

be limited to the difference between

the purchase price and

the value of the defective item.

This shall not apply, if we have

fraudulently concealed a defect

or have guaranteed the quality

of the item.

d) With regard to a claim in respect

of a defect in quality or title,

we shall in no event be liable

beyond the exclusions or

limitations of liability defined in

section 13.

(6) If the Purchaser receives incorrect or

incomplete assembly instructions, we

shall merely be obliged to deliver correct

and complete assembly instructions,

however only if the errors or

shortcomings in the assembly instructions

render proper assembly

impossible.

(7) In general, it is agreed that, where

applicable, the product description

from the manufacturer shall be taken

as a basis for the quality of the delivery

item or a component part contained

in the delivery item. Moreover,

public statements by the manufacturer

shall not constitute a contractual

indication of the quality of the delivery

item or a component of the delivery

item.

(8) The warranty period is one year from

the date of delivery or, if agreed upon,

from the date of formal acceptance

or from the date of an action

or non-action by the Purchaser

that is deemed equivalent to delivery

or formal acceptance. This period is

a claims limitation period and also

applies to claims for compensation

for consequential damages caused

by a defect, except where tort claims

are brought. The statutory claims limitation

period shall apply to these.

(9) We do not give the Purchaser any

guarantees in the legal sense. This

shall not affect guarantees that the

Purchaser is granted by third parties,

particularly manufacturer's guarantees.

 

§ 13

Liability - Indemnity - Contractual Penalty

in Respect of the Purchaser

(1) Legal regulations shall, in respect of

our liability, govern damages due to

an intentional or grossly negligent

breach of duty. The same shall apply

to damages based on loss of life or

injury to body or health, defects

fraudulently concealed and, regardless

of who is to blame, damages

arising from the giving of a guarantee

pursuant to section 276 (1) of the

German Civil Code [BGB]. If we give

a guarantee for certain qualities of

the contractually owed delivery, such

a guarantee shall only be binding on

us, if we have declared the guarantee

in writing.

(2) Where damages are caused by slight

negligence at most, we shall be liable

only in cases where so-called cardinal

duties have been breached. Cardinal

duties are fundamental duties

decisive for the conclusion of the

contract by the Purchaser and upon

whose performance the Purchaser

was reliant.

In so far as we negligently breach a

duty that is fundamental to the contract,

our obligation to compensate

for property damage and pecuniary

losses shall be limited to the insured

sum under our product liability insurance

or our liability insurance. We

agree to submit to the Purchaser or

Customer confirmation from the insurer.

(3) In the cases defined under subsection

(2), liability shall be limited to

foreseeable damages typical of the

contract. Liability for lost profits is excluded.

(4) a) In so far as the causal risk in connection

with resulting damages is normally

insured by purchasers in the

Purchaser's branch of industry, our

liability shall be excluded even in the

case of gross negligence.

b) In so far as it is customary in this

branch of industry to take out comprehensive

insurance for damaged

goods, our liability shall be excluded

in the case of slight negligence on

the part of our statutory representatives,

managerial employees and

other agents in performance and in

the case of gross negligence on the

part of our other agents in performance,

even if it concerns a breach

of duties fundamental to the contract.

(5) The above limitations of liability and

releases from liability defined in section

13 subsections (2) to (4) shall

not apply to claims of the Purchaser

arising from the Product Liability Act

[Produkthaftungsgesetz]. Furthermore,

they shall not apply to injury to

body and/or health attributable to us,

loss of life attributable to us, damages

due to fraudulently concealed defects

nor to damages arising from the

giving of a guarantee pursuant to

section 276 (1) of the German Civil

Code [BGB].

(6) No reversal of the statutory burden of

proof is associated with the above

provision in section 13 subsections

(1) to (5).

(7) In so far as our liability is excluded or

limited under the above provisions,

this shall equally apply to the personal

liability of our executive bodies,

employees, workers, staff members,

representatives and subcontractors.

(8) Except with our prior explicit written

consent, the Purchaser shall not be

entitled to wholly or partly deliver our

products to the United States of

America (USA) or to Canada (direct

delivery), nor to pass on our products

to a third party where the Purchaser

is aware that the third party will wholly

or partly deliver our products to the

USA or to Canada (indirect delivery).

(9) In any event of direct or indirect delivery

to the USA or Canada, whether

with or without our consent, the Purchaser

shall be obliged to indemnify

us on first request against all claims,

particularly those based on product

liability, that third parties bring

against us in connection with the direct

or indirect delivery of our products.

(10) Furthermore, the Purchaser shall be

obliged to take out in our favour and

at the Purchaser's expense adequate

product liability insurance, i.e. appropriate

product liability insurance that

meets US-American and Canadian

standards, and shall furnish us with

proof of such insurance prior to the

direct or indirect delivery of our products.

(11) For every case of a breach of the

Purchaser's obligations under subsections

(9) to (10), the Purchaser

shall be obliged to pay to us a contractual

penalty in the sum of

€ 10,000.00.

 

§ 14

Liability in Relation to Third Parties /

Indemnity

 

If and in so far as we deliver items according

to the Purchaser's specifications, the

Purchaser shall on first request indemnify

us against all third-party claims that third

parties bring against us pleading that they

have incurred damages as a result of the

item manufactured by us. The Purchaser's

obligation to indemnify shall apply only to

the extent that the Purchaser's specifications

caused the damage incurred by the

third party.

 

§ 15

Place of Jurisdiction and Performance

(1) In so far as the Purchaser is a merchant,

our principal place of business

is the place of jurisdiction. However,

we shall be entitled to also bring an

action against the Purchaser at the

court where the Purchaser's domicile

is situated.

(2) The laws of the Federal Republic of

Germany apply, excluding the UN

sales law.

(3) Unless otherwise indicated in the

acknowledgement of the order, our

principal place of business is the

place of performance.

 

- 25 -

§ 16

Severability Clause - Written Form

(1) If provisions in this contract are or

become ineffective, or in any situation

not contemplated and covered

by this contract, all other provisions

hereof shall remain in full force and

effect. The invalid, ineffective or unenforceable

provision shall be replaced

by a provision which is in accordance

with what the parties intended

in accordance with the spirit

and purpose of this contract The

aforesaid shall apply mutatis mutandis

for any situation not contemplated

and covered by this contract.

(2) Amendments and supplements to

this contract may only be agreed upon

in writing. This also applies to

cancellation of this written form requirement.