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General Conditions of Delivery and Sale

1 General
1.1 The following conditions of sale and delivery shall apply exclusively to all the goods we supply, our
services and quotes – including those to be delivered in future – in the business dealings between the
customer (purchaser) and Heinen + Löwenstein GmbH & Co. KG (vendor) if the purchaser is a
merchant within the meaning of Section 14 of the German Civil Code. They are thus taken to be
acknowledged by the purchaser upon placing his order but at the latest upon acceptance of the first
delivery. The latest version of these conditions shall apply for the entire duration of the business
relationship.
1.2 We hereby object to any differing conditions of the purchaser; they will be deemed to not have been
accepted, including the period of order execution. Other agreements, in particular assurances,
amendments, and ancillary agreements, shall only be valid if we declare our express consent to them
in in writing, to include the reproduction of a signature of the name or otherwise in accordance with
Section 126b of the German Civil Code.

2 Quotes and Orders
2.1 Our quotes, also those contained in prospectuses, advertisements and similar, as well as pricing
information and delivery deadlines, are non-binding and subject to change at all times. Technical
changes and changes to shape, colour, or weight shall be permitted within reasonable limits. The
description in the vendor's quote is deemed to have been agreed upon as the overriding description of
the goods and is supplemented by the manufacturer's product description. Public statements by the
vendor, the manufacturer, or his vicarious agents, especially in advertising or in descriptions relating
to certain inherent characteristics of the item, constitute no contractual depiction of the inherent
characteristics of the goods.
2.2 We request that orders are made in writing, to include the reproduction of a signature of the name or
otherwise in accordance with Section 126b of the German Civil Code.
2.3 The contract will not come into effect until confirmed by us in writing, to include the reproduction of a
signature of the name or otherwise in accordance with Section 126b of the German Civil Code. If no
confirmation is issued, the contract shall in all cases come into effect upon delivery of the goods,
which will include our invoice.

3 Delivery, Delivery Deadlines and Performance Deadlines
3.1 If delivery has not been agreed and no special arrangements have been made, the purchaser is
required to assume responsibility for ordered goods no later than two working days after notification
that they have been made available. Goods in stock and goods sold at the vendor's warehouse shall
be deemed to have been supplied upon the date of conclusion of the contract if the vendor has
informed the purchaser that the respective goods are in stock.
3.2 The risk of accidental destruction or deterioration of the goods shall transfer to the purchaser upon
handing over the goods to the purchaser. If the goods are shipped, the goods shall be transferred to
the purchaser upon their consignment to the freight forwarder, the carrier, or to any other person or
institution designated to ship them. At our option, shipment shall be made via carriage, freight
forwarding, post or similar from our plant in Bad Ems, Germany, or ex-warehouse from our branches
at the expense of the purchaser. If we are required to send the goods using a certain mode of
shipment, the purchaser shall be invoiced for the resulting charges even if we would normally deliver
them freight-free to the receiving station.
3.3 If a delivery or performance deadline is agreed, this shall begin on the date the contract is concluded
but not before any agreed advance payment is received by us from the purchaser. To comply with the
delivery or performance deadline, it shall be sufficient to make the goods available at the vendor's
premises or, accordingly, if shipping has been agreed, to dispatch the goods in a timely fashion.
3.4 If circumstances beyond our control such as Acts of God, sovereign intervention, import or export
bans, industrial action occur, the delivery or performance deadline shall be extended appropriately,
including cases of existing delivery or performance delays. If such delays should lead to postponement of performance of more than three months, the purchaser can cancel the contract after setting an appropriate subsequent deadline in accordance with clause
3.5. We shall also be entitled to cancel the contract if events of this nature should make delivery or
performance permanently impossible. Where delays are permanent, the purchaser shall also be
entitled to cancel the contract. We shall immediately notify the purchaser of the impediment to delivery
and if we cancel the contract we will reimburse any payments made. These provisions shall also
include shortfall or late supply to ourselves in the case that we cannot be held responsible for the
shortfall or the delay.
3.5 Failures to comply with delivery dates or delivery deadlines shall entitle the purchaser to cancel the
contract if an appropriate subsequent deadline of at least 14 days has been set by the purchaser with
which we have failed to comply. Any subsequent deadline must be made in writing.
3.6 If the purchaser is not able to accept the goods within two working days after they have been made
available (see clause 3.1) for reasons for which he is responsible, the purchaser shall be in default of
acceptance and the risk shall pass to the purchaser after two days upon notification that the goods are
available (clause 3.1, p. 1) or in stock (clause 3.1, p. 2).
3.7 In cases of transport damage, obvious defects are to be notified to the carrier in writing immediately.
Correspondingly, clause 4.1 shall apply. Notification is to be sent to us without delay together with a
written description of the damage.
3.8 In the case of customised products manufactured according to the special instructions from the
purchaser, the purchaser shall accept all consequences resulting from any breach of third-party
industrial property rights; in particular, the purchaser shall exonerate the vendor from any third-party
claims.
3.9 Partial performance is permitted within the delivery periods specified by us provided this does not
result in any disadvantages to the purchaser.

4 Notice of Defects, Warranties
4.1 Section 377 of the German Commercial Code shall apply provided that, if Subsection 1 of the Code
applies, the defect must be notified within two weeks following delivery to the purchaser. If Subsection
3 of the Code applies, the defect must be notified within two weeks after the defect has been
detected.
4.2 The option granted in Section 439, Subsection 1 of the German Civil Code shall apply to us. Costs of
repairing defects incurred due to the purchaser taking the item purchased to a place other than the
place of performance shall be borne by the purchaser. We may, at our option, also repair the defects
at the purchaser's premises.
4.3 If assembly instructions should contain errors, we shall only be obliged to supply error-free assembly
instructions; and only if the item has not been assembled correctly.
4.4 The warranty period shall be one year from delivery or – if acceptance is required – from the date of
acceptance.

5 Prices and Payments
5.1 The prices quoted in our current price lists are valid as of conclusion of the contract, plus the value
added tax applicable at the time of performance.
5.2 Only undisputed or legally determined counterclaims may be offset. Asserting rights of retention and/or
other rights to refuse performance is only permitted if counterclaims are undisputed or have been
legally determined.
5.3 In cases of arrears of payment or in cases of justified concern that the purchaser is insolvent or his
financial position has considerably deteriorated, we shall be entitled to suspend deliveries or, at our
option, demand immediate advance settlement of the total balance outstanding including claims not
yet due, claims deferred, and claims resulting from bills of exchange. Alternatively, we will demand
corresponding security deposits. If the purchaser fails to fulfil our requests for advance payment or
provide security within an appropriate period set by us, we shall be entitled to cancel all contracts. We
shall also be entitled to invoice the purchaser for costs incurred by us and for all damages caused.

6 Liability
6.1 Liability on the part of the vendor for compensation, regardless of the legal reason but in particular for
impossibility of performance, arrears, deficient or incorrect delivery, breach of obligations in contract
negotiations and illicit acts, shall, to the extent that this is due to fault, be limited in accordance with
this clause 6.
6.2 The vendor shall not be liable in cases of minor negligence on the part of his management bodies,
legal representatives, employees, or other vicarious agents provided no breach of fundamental
contractual obligations has occurred. Fundamental contractual obligations are defined as (i) the
obligation to make timely delivery and install the item delivered whose lack of defects that impair its
functional capability or usability constitute more than a minor impairment and (ii) obligations to provide
advice, protection and due care intended to enable the customer to use the item delivered in
accordance with the contract or protect the life and limb of the customer's personnel or his property
from major damage.
6.3 If the vendor is liable to pay compensation on the merits of the claim in accordance with clause 6.2,
liability shall be limited to the damage that has been foreseen by the vendor upon conclusion of the
contract as a possible consequence of a breach of contract or the damage he should have foreseen
by exercising the usual degree of due care and attention. Also, indirect and consequential damages
resulting from defects to the items delivered shall only be compensated if such damages are to be
typically expected during the intended use of the item delivered.
6.4 In cases of liability for minor negligence, the obligation on the part of the vendor to pay compensation
for physical damage and resulting subsequent financial loss shall be limited to an amount of EUR 5
million per claim (in accordance with the current sum assured in its product liability insurance policy or
liability insurance policy), even if a breach of fundamental contractual obligations has occurred.
6.5 The abovementioned liability exclusions and limitations shall apply to the same extent to the benefit of
the vendor's management bodies, legal representatives, employees, and other vicarious agents.
6.6 If the vendor provides technical information or acts as an advisor and the information and advice are
not part of the performance the vendor is obliged to deliver under the terms of the contract, this
information and advice shall be provided free of charge and shall exclude all liability.
6.7 In accordance with the German Product Liability Act or other legally binding grounds for liability, the
restrictions in this clause 6 shall not apply to the vendor's liability for deliberate actions, guaranteed
inherent characteristics of the product, death, physical injury, or harm to human health.

7 Reservation of Title and Liens
7.1 The following agreed retention of title is used to secure ownership (title) of all respective current and
future claims by the vendor against the purchaser resulting from the delivery relationships existing
between the partners to the contract (including balance claims resulting from a current account
relationship restricted to this delivery relationship).
7.2 The goods delivered by the vendor to the purchaser shall remain the property of the vendor until all
secured claims have been satisfied in full. The goods and the goods designated as goods subject to
any retention of title replacing them according to the following provisions are referred to below as
"reserved goods".
7.3 The purchaser shall store the reserved goods for the vendor free of charge.
7.4 The purchaser is entitled to process and sell the reserved goods in the normal course of business until
reservation of title is enforced (clause 7.9). Pledging and assignment are not permitted.
7.5 If the reserved goods are processed by the purchaser, it is agreed that they will be processed on
behalf of and on account of the vendor in his capacity as manufacturer and that the vendor will
acquire direct ownership or – if the goods are processed from materials belonging to several owners
or if the value of the processed item is higher than the value of the reserved goods – that the vendor
will acquire joint ownership (co-ownership) of the newly-created item as a proportion the value of the
reserved goods in relation to the value of the newly-created item. Should the vendor acquire no such
ownership, the purchaser transfers his future ownership or – in the abovementioned relationship - ownership of the newly-created item immediately to the vendor as security. If the reserved goods are
connected to or inseparably combined with other items and if one of the other items is to be regarded
as the main item, the vendor shall, provided he owns the main item, transfer joint ownership of the
unitary item pro rata to the purchaser at the proportion referred to in Sentence 1 above.
7.6 If the reserved goods are resold, the purchaser assigns here and now by way of security to the vendor
the resulting claim against the subsequent purchaser; this will be a pro rata claim in the case of joint
ownership by the vendor of the reserved goods according to his co-ownership share. The same
applies to other claims arising in place of the reserved goods or which otherwise arise in respect of
the reserved goods, such as insurance claims or claims resulting from wrongful acts in cases of loss
or destruction. The vendor revocably authorises the purchaser to collect the claims assigned to the
purchaser on his (the vendor's) own behalf. The vendor may only revoke this authority to collect in the
case where reservation of title is enforced.
7.7 If third parties gain access to the reserved goods, in particular as a result of pledging, the purchaser
will immediately inform these parties that the goods are owned by the vendor and will inform the
vendor of this access in order to enable the vendor to enforce his rights of ownership. If the third party
is not able to reimburse the vendor for the related court or out-of-court expenses incurred, the
purchaser will be liable to the vendor for these expenses.
7.8 The vendor will release the reserved goods and those items or claims replacing them if their value
exceeds the amount of the secured claims by more than 50%. The choice of the items to be released
will be made by the vendor.
7.9 If the vendor cancels the contract in case of actions in breach of the contract by the purchaser
(reservation of title), in particular due to arrears of payment, the vendor will be entitled to request the
return of the reserved goods.

8 Data Storage
The purchaser is aware that the vendor will store data arising from the contractual relationship in
accordance with Section 28 of the German Federal Data Protection Act for data processing purposes
and reserves the right to transmit the data to third parties if this is necessary in order to fulfil the
contract.

9 Place of Fulfilment, Applicable Law and Place of Jurisdiction
9.1 The place of fulfilment for deliveries and payments is Bad Ems, Germany.
9.2 The Law of the Federal Republic of Germany shall apply, with the exception of the provisions of the
conflict of law. The provisions of the UN Convention on the International Sale of Goods shall not
apply.
9.3 If the purchaser is a merchant, a legal entity in public law, or a special public fund in public law or if he
has no general legal venue in the Federal Republic of Germany, the legal venue for any and all
disputes arising from the business relationship between the vendor and the purchaser shall be bad
Ems, Germany. Furthermore, the vendor is entitled to institute legal action at the general legal venue
of the purchaser. Binding legislative provisions concerning exclusive legal venues remain unaffected
by this provision.

10 Final Provisions
Should individual provisions of these Conditions be or become wholly or partly void, invalid and/or
unworkable, the validity of the remaining provisions shall not be affected. Void, invalid and/or
unworkable provisions are to be replaced with valid and workable provisions that come as close as
possible to the desired commercial purpose. The same shall apply if these Conditions contain
omissions. The German-language version of these Conditions shall be authoritative. Any versions
hereof in other languages are merely translations.

 

Heinen + Löwenstein GmbH & Co. KG, Arzbacher Straße 80,56130 Bad Ems

 

 

 

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