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General terms and conditions of business

as of December 2011

§ 1 General, Scope

(1) These General Terms and Conditions, hereinafter referred to as T&Cs, apply to all our business relationships with our customers (hereinafter referred to as “Buyer”). The T&Cs only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law.
(2) The General Terms and Conditions apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as "goods"), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 651 BGB). The General Terms and Conditions in their respective versions also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same buyer, without us having to refer to them again in each individual case.
(3) Our general terms and conditions apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the buyer will only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in all cases, for example even if we carry out the delivery to the buyer without reservation despite knowing the buyer's general terms and conditions.
(4) Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and changes) always take precedence over these General Terms and Conditions. A written contract or our written confirmation is decisive for the content of such agreements.
(5) Legally relevant declarations and notifications which the Buyer must make to us after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be in writing to be effective.
(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these General Terms and Conditions.

§ 2 Conclusion of Contract

(1) Our offers are non-binding and subject to change. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. design drawings, plans, calculations, estimates, illustrations, technical data, weight, dimension and performance descriptions, 3D tool data, CAM data, electrodes, technology data and all copyrightable services that we provide for the customer), other product descriptions or documents - also in electronic form - to which we reserve ownership and copyright. We reserve the right to make technical changes within reasonable limits, as well as to adapt our products to later standards. Subsidiary agreements, reservations, changes, verbal assurances or
Additions to this contract require written confirmation from us to be valid. Licenses and usage rights can be acquired by the client through a separate contract.
(2) The order of the goods by the buyer is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
(4) If an order is placed electronically, the contract text will be saved by us and sent to the customer on request, e.g. by email, together with these terms and conditions of sale and delivery. In addition, the information obligations of Section 312 e Paragraph 1 Numbers 1-3 of the German Civil Code (provision of technical aids to eliminate input errors, provision of information in accordance with the Information Obligation Ordinance, immediate confirmation of receipt) are excluded.

§ 3 Delivery period and delay in delivery

(1) The delivery period is agreed individually or specified by us when the order is accepted. Delivery delays that are due to the customer requesting changes to the original order are at the customer's expense. This also applies if the customer does not meet his obligation to deliver data in the agreed form or does not do so on time or if the data delivered is defective and needs to be reworked. If production comes to a standstill in these cases, we can demand that the customer cover the downtime costs incurred by us due to idle times.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (unavailability of the service), we will inform the buyer of this immediately and at the same time provide the expected new delivery deadline. If the service is not available within the new delivery deadline, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already provided by the buyer. A case of unavailability of the service in this sense is in particular the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction. Our statutory rights of withdrawal and termination as well as the statutory provisions on the processing of the contract in the event of an exclusion of the obligation to perform (e.g. impossibility or unreasonableness of the service and/or subsequent performance) remain unaffected. The buyer's rights of withdrawal and termination in accordance with Section 8 of these General Terms and Conditions also remain unaffected.
(3) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder from the buyer is required. If we are in delay in delivery, any flat-rate compensation shall amount to a maximum of 2% of the delivery value of the goods delivered late. The buyer reserves the right to prove that he has suffered greater damage. We are entitled to prove that the damage incurred is significantly less than the above flat rate.

§ 4 Delivery, transfer of risk, acceptance, delay in acceptance

(1) Delivery is ex warehouse, which is also the place of performance. At the request and expense of the buyer, the goods will be shipped to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods passes to the buyer at the latest upon handover. In the case of a sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the dispatch. If acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the law on work contracts apply accordingly to an agreed acceptance. It is equivalent to handover or acceptance if the buyer is in default of acceptance.
(3) If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. for returns, for checking the condition of returns, storage costs). For this, we charge a flat-rate compensation of up to EUR 20.00 per calendar day, starting with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch. Proof of greater damage and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims (General Terms and Conditions of MS-Hydraulik). The buyer is permitted to prove that we have suffered no damage at all or only significantly less damage than the above flat rate.

§ 5 Prices and payment conditions

(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.

(2) In the case of a sale by dispatch (Section 4 Paragraph 1) or in the case of default of acceptance by the buyer, the buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the buyer. Unless we invoice the actual transport costs incurred in the individual case. Any customs duties, fees, taxes and other public charges shall be borne by the buyer. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; they become the property of the buyer; the following are excluded:

pallets.
(3) The purchase price is due immediately upon invoicing and delivery or acceptance of the goods, unless we have expressly agreed another method of payment with the buyer in writing. For all contracts, we are entitled to demand advance payment of the purchase price. The deposit is due and payable within 14 days of invoicing.
(4) Upon expiry of the above payment deadline, the buyer is in default. During the period of default, the purchase price will be subject to interest at the applicable statutory default interest rate. We reserve the right to claim further damages for default. In the case of merchants, our claim to commercial default interest (Section 353 of the German Commercial Code) remains unaffected.
(5) The buyer shall only be entitled to set-off or retention rights to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, Section 7 Paragraph 6 shall remain unaffected.
(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the buyer's inability to pay (e.g. by filing for insolvency proceedings), we are entitled to refuse performance and - if necessary after setting a deadline - to withdraw from the contract in accordance with the statutory provisions (Section 321 of the German Civil Code). In the case of contracts for the manufacture of non-fungible items (custom-made items), we can declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

§ 6 Retention of Title

(1) We reserve title to the goods sold until all of our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or transferred as security before the secured claims have been paid in full. The buyer must notify us immediately in writing if and to the extent that third parties access the goods belonging to us. The buyer must obtain our consent in advance if he wishes to transfer the goods subject to retention of title to a third country (e.g. the Netherlands) in which the simple, extended and expanded retention of title agreed above has no legal effect; a violation of this regulation entitles us to
personal damages against the managing directors or persons responsible for the buyer.
(3) If the buyer acts in breach of contract, in particular if the purchase price is not paid when due, we are entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title and withdrawal. If the buyer does not pay the purchase price when due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is unnecessary under the statutory provisions.
(4) The buyer is entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition.
(a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are considered the manufacturer. If the ownership rights of third parties remain in place during processing, mixing or combining with goods of third parties, we acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product, either in full or in the amount of our possible co-ownership share in accordance with the previous paragraph. We accept the assignment. The buyer's obligations set out in paragraph 2 also apply with regard to the assigned claims.
(c) The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, does not fall into arrears, has not filed for insolvency proceedings and there is no other lack of his ability to pay. If this is the case, however, we can demand that the buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the Buyer.

§ 7 Buyer's claims for defects

(1) The statutory provisions apply to the rights of the buyer in the event of material and legal defects (including incorrect and incomplete delivery as well as improper assembly or inadequate assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for the final delivery of the goods to a consumer remain unaffected (supplier recourse in accordance with Sections 478, 479 of the German Civil Code). Liability for material defects does not extend to wearing parts and to damage caused to the customer by natural wear and tear, moisture, strong heating of the rooms, other temperature or weather influences, improper handling, brute force, overexertion and the use of unsuitable operating or lubricants. Claims for subsequent performance, compensation, reduction or withdrawal within the meaning of Sections 437, 634 of the German Civil Code due to obvious defects expire after acceptance, but at the latest if the customer does not complain about them immediately. We bear the expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs.
(2) The basis of our liability for defects is primarily the agreement made regarding the quality of the goods. The product descriptions designated as such (including those of the manufacturer) that were provided to the buyer before placing his order or that were included in the contract in the same way as these General Terms and Conditions are deemed to be an agreement regarding the quality of the goods.
(3) If the quality has not been agreed, it must be assessed according to the statutory provisions whether a defect exists or not (Section 434 Paragraph 1 Sentences 2 and 3 of the German Civil Code). However, we do not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements). General Terms and Conditions of MS-Hydraulik

(4) The buyer's claims for defects presuppose that he has complied with his statutory inspection and complaint obligations (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, we must be notified of this immediately in writing. The notification is deemed to be immediate if it is made within two weeks, whereby timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this inspection and complaint obligation, the buyer must notify obvious defects (including incorrect and short deliveries) in writing within two weeks of delivery, whereby timely dispatch of the notification is sufficient to meet the deadline. If the buyer fails to carry out the proper inspection and/or notification of defects, our liability for the defect not reported is excluded.

(5) If the delivered item is defective, the buyer can initially demand, as a remedy, either removal of the defect (repair) or delivery of a defect-free item (replacement delivery). If the buyer does not state which of the two options he chooses, we can set him a reasonable deadline for doing so. If the buyer does not make the choice within the deadline, the right of choice passes to us upon expiry of the deadline.
(6) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a portion of the purchase price that is appropriate in relation to the defect.
(7) The buyer must give us the time and opportunity required to provide the subsequent performance owed, in particular by handing over the defective goods for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions.
(8) We will bear the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, if a defect actually exists. However, if a buyer's request for remedy of the defect turns out to be unjustified, we can demand reimbursement of the resulting costs from the buyer.
(9) If the subsequent performance has failed or a reasonable period set by the buyer for subsequent performance has expired without success or is unnecessary according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.
(10) The Buyer’s claims for damages or reimbursement of wasted expenses shall only exist in accordance with Section 8 and are otherwise excluded.

§ 8 Other Liability

(1) Unless otherwise stated in these Terms and Conditions, including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We are liable for damages – regardless of the legal basis – in the case of intent and gross negligence. In the case of simple negligence, we are only liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (an obligation whose fulfilment is essential to the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damage. The buyer is jointly liable for negligence under the law.
(3) The limitations of liability arising from paragraph 2 shall not apply if we have fraudulently concealed a defect or provided a guarantee for the quality of the goods. The same applies to claims by the buyer under the Product Liability Act.
(4) The buyer can only withdraw or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. The buyer's free right of termination (in particular according to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

§ 9 Limitation Period

(1) Notwithstanding Section 438 Paragraph 1 No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
(2) Special statutory provisions for third-party claims for the return of property (Section 438, Paragraph 1, No. 1 of the German Civil Code), in the event of fraudulent intent on the part of the seller (Section 438, Paragraph 3 of the German Civil Code) and for claims in the supplier's recourse in the event of final delivery to a consumer (Section 479 of the German Civil Code) remain unaffected.
(3) The above limitation periods under the law on sales also apply to contractual and non-contractual claims for damages by the buyer that are based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. The limitation periods under the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods apply exclusively to the buyer's claims for damages in accordance with § 8.

§ 10 Choice of law and place of jurisdiction



(1) These General Terms and Conditions and all legal relationships between us and the buyer are governed by the law of the Federal Republic of Germany, excluding all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title pursuant to Section 6, however, are subject to the law at the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.