Terms of Service - FBS Balke

Allgemeine Liefer- und Verkaufsbedingungen der F-B-S Balke International GmbH & Co. KG (Stand: November 2017)

§ 1 General Information - Scope

(1) Our General Terms of Delivery and Sales ("Terms of Delivery") shall apply exclusively; we shall not recognize any contradictory general terms of our contractual partner (the "Orderer") or general terms which deviate from our Terms of Delivery unless we have explicitly approved their validity. Our Terms of Delivery shall also apply exclusively if we carry out the delivery to the Orderer without reservation in the knowledge of contradictory terms and conditions of the Orderer or terms and conditions which deviate from our Terms of Delivery. (2) Our Terms of Delivery shall only apply towards entrepreneurs and legal entities under public law or special assets under public law. (3) Our Terms of Delivery shall also apply to all future business with the Orderer from ongoing business relationships.

§ 2 Offer – offer documents – conclu-sion of contracts

(1) Our offer is without obligation insofar as not explicitly otherwise declared by us. (2) Insofar as an offer should not be without obligation contrary to § 2 Par. 1 offers shall have a validity of 10 workdays. If not shown otherwise the term of acceptance begins with the date of our offer. (3) All drawings and calculations shall be deemed as non-binding until the final order. All liability claims are insofar excluded. (4) Orders are to be placed with us in writing. Orders placed with us only come into being by our order ac-ceptance or – in case an order acceptance is missing – if we deliver the goods without reservation. Oral agreements with our field service employees or sales agents are, insofar as they acted without presentation of a power of attorney, only legally binding, if we have confirmed these in writing. (5) In case of call orders we are entitled to procure the material for the whole order and to produce the total order quantity immediately. Possible requests for changes of the Orderer can accordingly no longer be taken into consideration after the order has been placed, unless this was explicitly agreed. Partial deliveries are permitted.

§ 3 Prices – terms of payment

(1) Insofar as not otherwise derived from the contractual agreement any pricing shall apply "ex works" (Inco-terms 2010), plus packaging costs in an amount which is customary for the market and costs for possible assem-bly services. (2) All prices are plus VAT in respec-tive legal rate. In case we exceptionally take over transportation costs or public charges and fees (e.g. Customs duties and import and export fees), we are entitled to recharge an increase of such costs occurred after conclusion of the contract to the Orderer, but in total to a maximum of ten percent of the order value. (3) We can also charge the Orderer the additional costs incurred by change requests of the Orderer if we have approved the changes. (4) The right to set-off against our claims is only available for the Orderer, if its counter-claims have been determined legal and binding, are undisputed or have been recog-nized by us. The exercising of a right to retention or right to refuse service by the Orderer is only justified if the Orderer´s counter-claim is due to the same contractual relationship. We are entitled to the right to offset to an unlimited extent. (5) If we are obliged to make a service in advance and if we become aware of circumstances after the conclusion of the contract, according to which a substantial deterioration of the Orderer’s assets can be assumed then we can at our choice either request collateral within a reasonable deadline or payment of the complete remunera-tion agreed upon matching with delivery. If the Orderer does not satisfy this request we are entitled, subject to further statutory rights, to cancel the contract. The services provided for the Orderer until this times are to be reimbursed by the Orderer.

§ 4 Delivery time and Scope of Delivery

(1) The start of the delivery time stated by us presumes the clarification of all technical questions and the compli-ance with the obligations of the Orderer and – as the case may be – the compliance with delivery prerequisites to be provided by the Orderer. Insofar as not otherwise agreed or not otherwise derived from the contractual relationship the delivery time stated by us is merely to be understood as approximate delivery time, customary trade deviations in the delivery date are permitted. Insofar as not otherwise agreed, the Orderer shall provide any permissions for transport and – as the case may be – for export. (2) Delivery periods and delivery deadlines shall be extended by the duration of the hindrance plus a reasonable start-up time in case of force majeure or other not to be represented by us and unforeseen circumstances such as operational breakdowns, strikes, lockouts, lack of transportation, labor disputes, natural disasters, commodity procurement difficulties, untimely delivery by subsuppliers and in the case of import or export permits that cannot be provided and official import or export prohibitions. An agreed delivery period shall be extended by the duration of the hindrance plus a reasonable start-up period. If the impediment lasts longer than six months, either party shall be entitled after a reasonable grace period, to rescind the contract with regard to its unfulfilled part. (3) The compliance with our delivery obligation presumes the timely and proper satisfaction of the obligations of the Orderer. If we exceptionally execute or have executed the transport of the goods, the Orderer shall ensure free transport routes for our deliveries and a free, unhindered access to the discharge or construction site and carries the risk of additional costs in this respect. (4) If the delivery time is extended at the request of the Orderer then we can charge the thus ensuing costs to the Orderer.

§ 5 Passing of risk

(1) Insofar as not otherwise derived from the order confirmation and this is not opposed by any regulation concerning the place of performance delivery is agreed "ex works" (Inco-terms 2010). This shall also apply in the event of partial deliveries as well as the transport by our own vehicles. (2) Insofar as an acceptance is to be carried out its date is decisive for the passing of risk. In case the Orderer begins to use our service for a not insignificant time, the risk shall pass to it. (3) At the explicit request of the Orderer only and at its costs we will cover transport insurance for the delivery;

§ 6 Claims for Defects

(1) Any warranty (Gewährleistung) rights (claims for defects) of the Orderer presume that it inspects the delivered object without delay and properly reports recognizable defects (duty to examine and give notice of defects in terms of commercial law). Claims for defects not reported in time are excluded. Reports have to be made with the specified details of the defects. (2) Claims for defects do not exist if the quality or usability of the goods for their use is affected only slightly and no limitation of function is given. Customary or technically unavoidable deviations, e.g. from the agreed color, shape as well as the descriptions of the goods in the order confirmation are not considered a defect. Custom-ary or technically unavoidable deviations of physical or chemical quantities are no defect. (3) Performance of machines and equipment in our offers are achieved at the fulfillment of Orderer´s mutual duties to cooperate, feed material according to the contract, profession-ally using of the system and operation and maintenance of the facility in accordance with the operating and installation instructions. (4) Weight, measurement details and technical details in drawings, bro-chures, diagrams and other docu-ments are, insofar as not explicitly otherwise agreed, only approximate details and in particular do not represent any guarantees of condition. All of those parts or services are to be subsequently improved, newly delivered or newly provided by us free of charge at our choice, which feature a defect within the statute-of-limitations insofar as this already existed at the time when the risk was passed. (5) No warranty is assumed for defects and damages the Orderer is responsi-ble for, in particular such caused by unsuitable or improper use, faulty assembly or putting into operation by the Orderer or third parties, natural wear and tear, faulty or negligent treatment, unsuitable work equipment, replaceable materials, chemical, electro-chemical or electrical influ-ences at the place of delivery, except as the defects/damages are a result of our faults. Furthermore, we accept no warranty or liability if defects are caused by incomplete or incorrect information of Orderer regarding feed material, technical/local conditions of the site and / or logistical or technical process flows. Our warranty also does not apply as far as defects / damages of any kind are due to the fact that the Orderer or a third party makes technical modifica-tions or repair work without our prior approval. Unless otherwise expressly agreed, we do not warrant that neither plants nor components supplied by us are compatible with third-party supplies or Orderer-owned compo-nents. (6) If the Orderer unjustifiable and for reasons we are not responsible for reports the existence of a defect for which we are not responsible, then we are entitled to charge the reasonable expenses incurred to us for the remedy or determination of the defect to the Orderer. (7) Claims of the Orderer owing to the expenses which are necessary for the purpose of the supplementary perfor-mance (Nacherfüllung), in particular transport, route, labour and material costs are excluded, insofar as the expenses are increased by a subse-quent transportation of the delivered object to another location than the original place of service (place of performance). We are entitled to charge the Orderer with such addi-tional costs. (8) Claims of the Orderer for defects of quality shall become statute-barred in 12 months from delivery or, insofar as such is envisaged, from acceptance. However the legal statutes-of-limitations for claims for defects shall apply insofar as these by law are longer than 24 months and nothing to the contrary can be derived from these Terms of Delivery, thus e.g. for objects, which have usually been used for buildings and for buildings and defects to buildings as well as in the event of wilful or grossly negligent cause of defects and with malicious non-disclosure of a defect. This limitation shall also apply to claims for consequential damages under the warranty. (9) Before the Orderer can assert further claims or rights (cancellation, reduction, damages, reimbursement of expenses) we are initially to be given the opportunity for supplementary performance within a reasonable deadline insofar as we have not submitted any guarantee to the contrary. Only in urgent cases of the operational safety and to defend disproportionately high damages, whereby we are to be informed immediately, does the Orderer have the right to remedy the defect itself or to have this remedied by third parties and to request reimbursement of the necessary costs from us. If the supplementary performance fails despite at least two attempts at supplementary performance, if the supplementary performance is impossible, is refused or if it is deemed unreasonable for the Orderer, then the Orderer can cancel the contract or reduce the remuneration (mindern). § 9 of these Terms of Delivery shall apply to the assertion of claims for damages by the Orderer. (10) The sale of used objects is carried out under the exclusion of each warranty. This exclusion does not apply to damages arising from liability for defects that are based on an intentional or grossly negligent breach of our obligations as well as the culpable violation of life, body and health. (11) Basically, we accept no liability for damages arising from preparatory work e.g. sandblasting or heat treatment on the substrate to be coated. In these cases, the responsi-bility and assessment is with the Orderer, whether the substrate, which is intended for surface finishing or coating, is suitable for the required processing operations.

§ 7 Liability for damages

(1) Subject to the regulations in Par. (3) of this § 7 claims for damages, in particular with regard to consequential damages from defects (including missed profit) against us are excluded unless (i) we are responsible for gross negligence or wilful intent or (ii) it concerns the breach of an essential contractual obligation (cardinal obligation), in which case we shall also be liable in case of simple negligence. (2) Insofar as we owe damages according to the afore-mentioned sentence (1) our liability is limited with regard to the amount however to net-value of the contractual deliveries and services as furthermore to the foresee-able damages which are typical for the contract unless we are responsible for wilful intent. (3) Notwithstanding the regulations in Par. (1) and (2) of this § 9 we shall be liable for damages according to the statutory regulations with claims for damages (i) according to the Product Liability Act, (ii) owing to the injury to life, body or the health and (iii) after the assumption of a guarantee for the existence of a property (guarantee of condition). (4) A change to the statutory regula-tions for burden of proof is not associated with the regulations in § 7. (5) Insofar as our liability is excluded or limited this shall also apply to the personal liability of our employees, workers, representatives and vicarious agents. (6) Possible claims for damages shall become statute-barred according to the statutory provisions, by no later however than after expiry of one year from knowledge or the grossly negligent lack of knowledge of the Orderer of the reason for the claim. This restriction shall not apply to the claims described in § 6 (8). (7) If the delivery item shall be incor-porated in equipment, machinery assembly or machine of the Orderer or connected to it, for which the Orderer shall make a Declaration of Conformity or Declaration of Incorporation according to the EU machinery directive, we are not liable for missing declarations. In such a case, the Orderer is responsible for obtaining the Declaration of Conformity / Declaration of Incorporation for the entire system.

§ 8 Reservation of ownership

(1) We reserve the right to the owner-ship to the delivered object until the receipt of all payments from the Orderer relationship with the Orderer. (2) In case of a conduct of the Orderer which is in breach of the contract, in particular in case of default of payment after setting reasonable deadline, we are entitled to take the delivered object back. This shall not apply insofar as the Orderer has already applied for insolvency proceedings or such were opened, owing to which an immediate taking back of the delivered objects is not permitted. The cancellation of the contract does not exclude claims for damages against the Orderer. After the delivered object has been taken back we are authorized to sell it, the sales proceeds are to be offset against the liabilities of the Orderer – minus reasonable sales costs. However the sales regulations of the Bankruptcy Code (InsO) shall apply after the opening of insolvency proceedings. (3) The Orderer undertakes to treat the object of delivery with due care and attention as long as the reservation of title exists; it is in particular obliged to sufficiently insure this at the value as new at its own costs against fire, water and theft damages. Insofar as service and inspection work is necessary the Orderer must carry this out in time at its own costs. (4) In case of attachments or other interventions of third parties the Orderer has to point out the reserva-tion of title and inform us immediately. (5) The Orderer is entitled to resell the object of delivery in the ordinary course of business, however it shall hereby now already assign us claims in the amount of the final invoice amount (including value added tax) of our claims, to which it is entitled from the resale against its buyers or third parties irrespective of whether the delivered object has been resold without or after processing. The Orderer shall also remain authorized to collect this claim after the assign-ment. (6) We are authorized to collect the claim ourselves, if the Orderer does not satisfy its payment obligations from the collected proceeds, is in default of payment or has filed for the opening of insolvency proceedings or a third party has filed for. If this is the case we can request that the Orderer announces the assigned claims and their debtors, provides all details which are necessary for the collection, hands over the associated documents and informs the debtors (third parties) of the assignment. A collection by us is however not possible insofar as this is opposed by the InsO. (7) The processing or conversion or connection of the delivered object by the Orderer is always carried out for us. If the delivered object is pro-cessed, converted, connected or inseparably mixed with other objects which do not belong to us, we shall acquire the co-ownership (Miteigen-tum) to the new object in the ratio of the value of delivered object to the other processed, converted, connect-ed or mixed objects at the time of the processing, conversion or connec-tion/ mixture. The same shall inci-dentally apply to the object produced hereby as to the objects of delivery under reservation of title. (8) If we provide the purchaser with items that we merely hand over to him for use, the purchaser shall protect our property against third parties and may only use and use the items in his own company and for the intended purpose.

§ 9 Final Provisions

(1) The place of performance for all contractual obligations and jurisdic-tion for all disputes in connection with the contract is our registered office. However, we are entitled at our discretion to sue the Orderer at his registered office. (2) The legal relations between the parties are exclusively oriented to German law under the exclusion of any international conventions, particularly the UN Convention on the International Sale of Goods (UNCITRAL/CISG). (3) The assignment of rights of the Orderer under the contract shall be subject to our approval (4) Should individual provisions of the contract or these Terms of Delivery be or become invalid this shall have no effect on the validity of the other provisions. F-B-S Balke International GmbH & Co. KG | Dellenfeld 34,42653 Solin-gen, AG Wuppertal HRA20494 | persönlich haftende Gesellschaft: F-B-S Franz Balke Beteiligungsges. mbH | AG Wuppertal HRB16571,USt-Id-Nr.: DE 226631928 |Geschäftsführer: Axel Balke