General Business and Sales Conditions

of Josef FLECKNER GmbH & Co. KG

Stamping and Welding

The following conditions apply to all our transactions unless agreements otherwise have been made in writing:

§ 1 General

(1) The following sales and delivery conditions apply exclusively for all deliveries and other services; they apply only to companies within the intendment of § 310 Para. 1 in conjunction with § 14 Civil Code.

(2) Any divergences conditions of the buyer that are not expressly recognized by the seller are not binding, even if the seller does not expressly contradict them. Any supplementary agreements by word of mouth require confirmation in writing to be effective. Special agreements in writing only take precedence over these Conditions if they diverge from such.

(3) The comprehension and interpretation of these sales and delivery conditions and the conclusion and interpretation of the legal transactions with the buyer himself are governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.

(4) The ineffectiveness in law of individual provisions of this contract or of its parts does not affect the validity of the remaining parts and provisions. Within what is reasonable in good faith, the contracting partners undertake to replace an ineffective provision by an effective one financially equivalent to it provided that this does not cause an important change in the content of the contract; the same applies if a matter requiring a ruling has not been expressly defined.

(5) The place of performance for all obligations resulting directly or indirectly from this contractual relationship including the obligation of payment is the registered office of the seller.

(6) The place of justification is that which is the competent court for the registered office of the seller provided that the buyer is a businessman. The seller also has the right to sue before a court which is competent for the registered office or a branch of the buyer.

§ 2 Quotations, scope of performance and und conclusion of contract

(1) Contractual offers of the seller are not binding. (2) The order confirmation of the seller alone determines the scope of the contractually undertaken performance. Supplementary agreements and promises by representatives require confirmation in writing.

§ 3 Prices and terms of payment

(1) Prices are strictly net ex-works plus VAT and exclude packing and other shipment and transportation charges. Packing is charged at cost price and is only taken back when the seller is obliged to do so by mandatory regulations.

(2) If there are more than 3 months between the conclusion of the contract and delivery without the seller being responsible for the delay in delivery, the seller may make a reasonable increase in the price, due account being taken of increases that have occurred in the price of material, wages and other ancillary costs which have to be borne by the seller. If the purchase price should rise by more than 20%, the buyer is entitled to withdraw from the contract.

(3) Should the seller take account of any retrospective wishes expressed by the buyer, also in respect of numbers and call quantities, the extra costs, higher unit prices and a proportion of the tool costs will be charged to the buyer.

(4) Invoices are payable within 30 days of invoice date. If payment is in bills of exchange, cheques or other means of payment, discounting and collection charges are to be borne by the buyer.

(5) If the payment term is intentionally exceeded, late payment interest at 8% points above the base interest rate valid at the time will be charged whilst the right to raise further claims is reserved.

§ 4 Tools

If only a proportion of tool costs is borne by the buyer, this will be invoiced separately from the value of the goods. This is due on the dispatch of the reference sample or if such were not required on the first delivery of the goods. The buyer does not acquire any ownership or possession of the tools through the payment of a proportion of the tool costs. The seller undertakes to store the tools for up to 2 years after the last order by the buyer. If before the deadline an order is announced by the buyer before the end of a further, the seller is obliged to store the tools for this time. Otherwise he may freely dispose over the tools.

§ 5 Compensation and retention

Compensation and retention are excluded unless the compensation claim is uncontested or declared final.

§ 6 Delivery date, over-deliveries, part-deliveries

(1) The indication of a delivery date is is not binding and can be reasonably extended should the buyer for his part delay or neglect required or agreed upon concurrence activities. The same applies for measures within the area of collective action, especially strikes and lockouts as well as the occurrence of unforeseen drawbacks which cannot be influenced by the seller, e.g. delivery delays of pre-suppliers, traffic blocks and operational disturbances, material or energy shortage, etc. Also changes to the goods supplied demanded by the buyer will also lead to a reasonable extension of the delivery time.

2) In the case of special production, delivery of up to 20% more or less of the ordered quantity is permissible.. Part deliveries will be invoiced separately. In the case of contracts for goods to be supplied in consecutive, the seller is to be advised in good time of the numbers of type and variety in each case. If this is not done despite the setting of a deadline, the seller has the right to divide and supply at his discretion or to withdraw from the non-performed part of the contract and demand compensation of the loss suffered.

§ 7 Transfer of risk

The risk passes to the buyer as soon as the seller has placed the goods at the disposal of the buyer and has notified the buyer of this. When the goods are dispatched – no matter at whose expense, the risk passes to the buyer on the handing over of the goods to the latter’s shipment agent but at the latest when the goods leave the factory. If the dispatch or acceptance of the goods readied for shipment is delayed for reasons for which the seller is not responsible, the risk passes to the buyer on receipt of the notification that the goods are ready for dispatch.

§ 8 Retention of ownership

(1) The seller retains ownership of the goods supplied until payment in full. Retention of ownership also applies until all, also future and conditional, claims from the business relationship between buyer and seller have been met.

(2) The buyer is not authorized to use the goods as security or to pledge them but is entitled to resell the goods subject to retention of ownership in the regular course of business The claims resulting through this on his business partner are hereby ceded by him in advance to the seller.

(3) Should the goods be treated or processed by the buyer the right of retention is extended and also includes the complete new item. The buyer acquires joint title pro rata to that part of the goods that corresponds to the ratio of the value of the goods supplied by the seller.

(4) If the value of all the securities for the seller exceed the existing claims in a sustained manner by more than 20 percent, the seller at the request of the buyer will release securities at the choice of the seller.

(5) The seller is entitled to claim rights of retention without withdrawing from the contract.

§ 9 Claims for defects

(1) If the purchase is a commercial transaction for both pts, the buyer must examine the goods immediately after receipt if this is possible in the regular course of business and if a defect is found he must notify the seller in writing without delay. Should the buyer omit such notification, the goods shall be deemed to be approved unless it is a question of a defect which was not apparent during the examination. Otherwise §§ 377 ff. HGB shall apply.

(2) Claims for defects are limited to rectification whereby the seller has the choice between reworking or replacement. Should subsequent performance be unsuccessful, the buyer has the right to demand either a reduced price or the cancelation of the contract.

(3) Any further claims on the part of the buyer, unless these follow from a guarantee or the Product Liability Act, are excluded. This does not apply in the case of intent, gross negligence or breach of major contractual obligations on the part of the seller. In the latter case, our liability is limited, however, to the foreseeable damage which typically occurs.

(4) Claims for defects fall under the statute of limitation one year after delivery of the goods purchased.

§ 10 Liability

Claims for damages by the buyer are excluded. This does not apply in the case of intent, gross negligence or breach of major contractual obligations on the part of the seller or for claims under guarantee. § 9 Para. 3 applies accordingly.

§ 11 Right of withdrawal

After the conclusion of the contract, the seller is entitled at his choice to withdraw wholly or partly from the contract or to demand security or payment in advance if changes occur in the person of the buyer or in the legal form of the firm or if he should learn of facts affecting the creditworthiness of the buyer.

§ 12 Suspension of payment

If the buyer suspends his payments or if an application is made for insolvency proceedings over his assets or the assets of a co-proprietor of the firm of the buyer, all accounts receivable of the seller will be due immediately. At the same time, all rebates and other reductions of payment granted will no longer apply. Furthermore, the buyer is also obliged to determine all stocks from our deliveries still held by him and to hand them over to our agents.