Trautwein GmbH, Denzlinger Str. 12, 79312 Emmendingen, Germany

Translation of our German Terms and Conditions for your information.

Terms and Conditions

1. Validity

1.1 These general Terms and Conditions shall apply exclusively to all deliveries and services. The Customer’s general terms and conditions shall not apply, even if the Supplier does not expressly contradict them.

1.2 The general Terms and Conditions apply to:

Consumer, as defined by the Terms and Conditions, are individual persons with whom business relations are started and to whom no commercial or self-employed actions may be attributed.

Entrepreneur, as defined by the Terms and Conditions, are individuals or juristic persons or incorporated partnerships which act in a commercial or self-employed professional activity and with whom a business relationship is entered.

Customer, as defined by the Terms and Conditions, are consumer as well as entrepreneurs.

2. Offer and conclusion of contract

2.1 Our offers are subject to change.

2.2 Orders are regardedaccepted, if they are either confirmed in written form or if they are executed immediately or in due time. In this case, the invoice is considered as order confirmation.

2.3 Our written order confirmation is authoritative for the scope of supply. Subsidiary agreements and changes are subject to acceptance in written form.

2.4 We retain unrestricted property rights and copyrights to quotations, drawings and other documents; they must be not disclosed to third parties. Drawings and other documents in combination with quotations are to be immediately returned on request, if we do not receive the corresponding order.

3. Prices

3.1 Prices shall apply ex works excluding packaging.

3.2 Net costs are charged for packaging. A return of packaging is not accepted, except if special agreements are made. Costs charged for disposal are already deducted from the freight/packaging costs charged by us. If the Customer returns the for the transport of the goods needed packaging to the Supplier, the Customer has to bear the costs for the return transport. Disposal fees of 20 % are going to be charged additionally.

3.3 VAT at the applicable statutory rate is added to all prices. If part-payments are agreed, the VAT applies already to the first payment.

4. Payment

4.1 If not agreed differently, payments by the Customer are payable without any deduction, to the appointed paying agent

• in the amount of 50 % after reception of the order confirmation,
• in the amount of the remaining 50 % after announced readiness for dispatch

If not agreed differently, payments of the Customer are payable with the handing over of the goods.

• In the event of a late payment, we are entitled to claim legal interest on arrears. The enforcement of further damage due to delay in performance is hereby not suspended. Regarding other companies, our claim to the commercial default interest (§ 353 German Commercial Code) remains unaffected.
• Settlement of invoices via check and draft are accepted on account of payment only. The payment by draft is subject to prior agreement with us. The Customer carries all charges related to the draft and check. We are not reliable for the timeliness of the protest.
• The Customer has a right of retention or right of offset only if his claim is undisputed or legally ascertained. In case of defects in the delivered goods, the counter rights of the buyer remain unaffected.
• If circumstances emerge, which question the financial standing of the Entrepreneur, especially if a check is not cashed or the payment is stopped, we are entitled to declare the remaining debt due for payment, even if the check was accepted by us. We are, furthermore, entitled to request advanced payments or securities.

5. Delivery time

5.1 Fixed dates for deliveries and services are only mandatory, if they are confirmed by us in written form. The delivery period starts with the sending of the order confirmation, but not before the documents, which have to be obtained by the Customer, are provided.

5.2 The delivery period is met, if the goods have left the site or if the readiness for shipment is communicated, before it passes.

5.3 The delivery time extends accordingly if events occur, such as labor disputes, especially strikes and lockouts, as well as force majeure, which we are not accountable for. This applies also if these events occur with our suppliers.

We are also not to be held accountable if the above mentioned events occur during an already ongoing delay. We are going to inform the Customer about the beginning and end of such obstacles soonest possible.

5.4 The observance of the delivery period presumes the performance of the Customer’s contractual obligations.

5.5. We are entitled to partial deliveries and partial performances at all times, as long as these are reasonable to the Customer.

6. Orders and release orders

All release orders, if not agreed differently, are to be collected at the latest within 3 months after the conclusion of the written agreed contract period, without any further demand. When the deadline expires, we are, at all times, entitled to charge the goods at the time of shipment or to withdraw from the contract. If no contract period is set, the above mentioned rights are entitled to us one year after conclusion of the contract, at the latest.

7. Risk transfer and shipping

7.1 Our place of performance is Emmendingen/Germany. If the Customer requests us to ship the goods to another place, the risk is transferred to the Customer as soon as we give the goods to the transport company, forwarding agent or another person designated for transport. This applies also, if we carry the transport costs as well as for partial deliveries.

7.2 Except when otherwise agreed, the Customer is in charge of the goods’ insurance. This also applies for deliveries abroad.

7.3 If the dispatch is delayed as a result of circumstances for which the Customer is responsible, the risk is transferred to the Customer from the day the goods are ready for dispatch.

7.4 In case of dispatch, the Customer has to make arrangements, that the goods can be delivered immediately, e.g. with the provision of a fork lift, a crane or the like, as well as personnel.  7.5 Part deliveries are tolerable, as long as these are reasonable to the Customer.

8. Reservation of proprietary rights

8.1 The goods shall remain our property until payment of the purchasing price and clearance of all current account balance claims resulting from the business relationship and with all future claims in connection with the bought goods.

The insertion of individual outstanding payments on current account or the striking of a balance and recognition of such balance shall not annul the reservation of title.

If, in connection with the payment of the purchasing price, a liability for the Customer arises due to  any negotiable instrument transaction, then the reservation of title stands until the negotiable instrument is redeemed with the Customer as drawee. In case of delayed payment by the Customer, we are, after a reminder, entitled to reclaim the goods supplied under reservation of title; the Customer is obliged to handover the goods

8.2 If the goods supplied under reservation are processed into a new movable item by the Customer, processing is carried out for us without our being under any obligation; the new item becomes our property. produced items in the ratio of the value of the items provided by us to the total amount of all the items used In the case of processing with other items not belonging to us, we are entitled to joint ownership of the newly

in the production at the time.

If the goods supplied under reservation are combined, blended or mixed with goods not supplied by us, corresponding to §§ 947, 948, German Civil Code, we are entitled to joint ownership according to the legal regulations.

If the Customer gains sole ownership by combining, blending or mixing, he already now transfers joint ownership to us according to          the ratio of the value of the items provided by us to the total amount of all the items used in the production at the time of combining, blending or mixing.

In these cases, the Customer has to store the object in our ownership or joint ownership, which is also considered as object supplied under reservation according to the following regulations, at no charge.

8.3 If the customer sells goods which are subject to a reservation of title, either alone or in combination with goods not belonging to us, the Customer herewith assigns to us all claims resulting from resale up to an amount equally to the value of the goods subject to the reservation of title including all ancillary rights and a priority before the remaining claims. We accept the assignment. The value of the reserved goods is the invoiced amount plus a security premium of 10 %, which will, however, be left out of account if it conflicts with third party rights. If the sold goods (which are subject to reservation) are part of our co-ownership, assignment of the claim only refers to the amount corresponding to the value of our share in the coownership. Paragraph 1, sentence 2 applies to the extended retention of title; the advance assignment according to paragraph 3, sentence 1 and 3 covers the balance demands.

8.4 If the Customer installs the reserved goods into premises belonging to a third party as an integral part, the Customer hereby assigns the assignable claims to payment from the third party or the party concerned to the sum of the goods under reservation of title, with all ancillary rights, including the right to the grant of a

security mortgage, with priority over other charges; we accept the assignment. Paragraph 3, sentence 2 and

3 apply accordingly.

8.5 If the Customer installs the reserved goods into premises belonging to the Customer, the Customer hereby assigns the claims arising from the commercial sale of the property or of property rights to the value  of the reserved goods along with all subsidiary rights, with priority over other charges; we accept the assignment. Paragraph 3, sentence 2 and 3 apply accordingly.

8.6 The Customer shall only be entitled and authorized to resell, use or process the goods under reservation of title within the scope of ordinary business activities and only on the condition that the claims as stipulated in paragraph 3, 4 and 5 are in actual fact assigned to us. The Customer is not entitled to other dispositions of the reserved goods, in particular authorizations for pledging or transfer of security.

8.7 Reserving the right to revoke, we authorize the Customer to collect the claims assigned to us in accordance with paragraphs 3, 4 and 5. We will not exercise our right to collect the claims ourselves as long as the Customer complies with its payment obligations, including its payment obligations towards third parties. On demand, the Customer has to inform us of the debtors of the assigned debts and to inform these debtors about the assignment to us; we are entitled to indicate the transfer to the debtors ourselves.

8.8 The Customer must inform us without delay about any foreclosure measures of third parties regarding the reserved goods, the accounts receivables assigned to us or other securities, and must provide us with all the documents necessary for an intervention.

8.9 In case of discontinuation of payment, implication for or initiation of insolvency proceedings, judicial or out-of-court composition proceedings, the right for re-sale, usage or installation of the reserved goods and the authorization to claim assigned accounts receivable shall be forfeited; in case of a cheque or bill protesting, the authorization for collection expires as well.

8.10 If the value of the offered securities exceeds the value of the claims by more than 10 %, we are obliged to retransfer or release the claims according to our choice. With the settlement of all our claims originating from this business relationship, the ownership of the goods subject to reservation and the assigned claims are transferred to the Customer.

9. Warranty and Liability

9.1. In case of defects on the delivered goods, the Customer is entitled to legal rights, if nothing else arises from these Terms and Conditions.

9.2. If the Customer is an entrepreneur, he shall inspect incoming goods immediately upon their receipt for defects, if another good was delivered instead of the ordered one and if the agreed amount was exceeded or reduced. In case of a defect, we shall be notified in writing within a period of 8 days after reception of the goods.

9.3. If the Customer is an entrepreneur, the warranty is limited to one year.

9.4. If the Customer is an entrepreneur and wants to withdraw from the contract due to a defect of title or defect of quality and after subsequent performance has failed, he is not entitled to any additional claims for damages based on that defect. If he decides to receive compensation due to the failure of subsequent performance, the goods remain with him if reasonable. The compensation is limited to the difference of the purchasing price to the value of the defect good. This provision shall not apply if the breach of contract is due to fraudulent intent on our part.

9.5. We shall be liable to compensate – irrespective of legal ground – in the event of intent and gross negligence. We shall accept liability – subject to a mild standard of liability – in the case of simple negligence (e.g., for care we usually employ in our own affairs) only a) for the violation of life, body or health,

1. for damages due to not insignificant violation of an essential contractual obligation (obligation whose performance is necessary to execute the contract properly and whose performance the Customer regularly relies and may rely upon; in this case, however, our liability is limited to the payment of the typically foreseeable damage.
2. for damages due to late performance in the height of 0.5 % per each full week of the delay. All in all, however, not exceeding 5 % of the value of the part of the full delivery, which cannot be used on time or as per agreement, due to the delay.
   • The liability limitations resulting from 9.5. apply also to violations of obligations by, respectively, in favor of persons, whose faults we are liable for according to legal rights. They do not apply if we have fraudulently concealed a defect or have given a quality guarantee for the goods and for claims of the Ccustomer according to product liability law.
   • Due to a breach of duty which is not attributable to a defect, the Customer can only withdraw from or cancel the contract, if we are responsible for the breach of duty. A free right of cancellation for the Customer (in particular in accordance with §651, 649 of the German Civil Code) is excluded. Otherwise the legal preconditions and legal consequences are applicable.
   • If the Customer installs spare parts delivered by us himself or by a third person assigned by him, we do not provide any warranty for his installation.

 

10. Recovery and disposal according to Electrical Equipment Act (ElektroG)

10.1 The Customer shall hold us harmless from the obligations under § 10 sentence 2 of the ElectroG (duty of the manufacturer to accept returns) and from any claims of third persons in this connection.

10.2 The Customer shall impose suitable contractual requirements to ensure that either the Customer’s customer sees to their due and proper disposal in accordance with the statutory provisions after the termination of the use and/or assumes liability towards its customers for the due and proper disposal. In case this obligation is void or passed on invalidated, the Customer commits himself to take back the goods on his own expense and to properly dispose thereof.

10.3 The limitation period of the claim for indemnity/acceptance starts with reception of the written notice regarding the termination of use of the goods.

 

11. Place of Jurisdiction

For all conflicts resulting from this contract, the legal proceedings must be brought before the court having jurisdiction over us, if the customer is s merchant who has been entered as such in the commercial register, a legal person under public law or a special fund under public law. We are also entitled to file a suit at the Customer’s head office location.

12. Applicable Law

The laws of the Federal Republic of Germany shall apply with the exception of the UN Sales Law.