GENERAL TERMS AND CONDITIONS

of ES&S Solutions GmbH (hereinafter: “ES&S”) Gewerbering 2, D-41751 Viersen

I. General provisions

  1. Our terms and conditions are exclusively agreed as binding for all commercial relations. General terms and conditions of the orderer only apply insofar as we have expressly agreed to them in writing.
  2. We expressly reserve the right to change or add to these general terms and conditions in terms of content for individual transactions through appropriate written supplements. Oral ancillary agreements are only valid if they have been confirmed in writing.
  3. In individual cases, agreements made between the contract partners (also ancillary agreements, additions and changes) have in any case priority over these terms and conditions, insofar as they have been confirmed in writing.
  4. The commercial relations between us and orderers are subject to the law of the Federal Republic of Germany to the exclusion of the UN CISG. Viersen is the place of jurisdiction insofar as the customer is a business person or a legal entity under public law.
  5. The language of the contract is German.

II. Contract content and conclusion of the contract

The written confirmation of the order by ES&S is decisive for the content of the contract.

III. Deliverries

  1. Delivery dates stated by us do not begin until after the details of performance, technical or commercial issues are conclusively resolved, insofar as they arise from the orderer’s sphere. The orderer is not entitled to withdraw from the contract if there is simply a reasonable delay under special circumstances in an individual case. If we culpably are unable to observe an expressly agreed deadline or default for other reasons, the orderer is to allow us a reasonable period of grace. It is not possible to set such a period of grace if the contract deals with a time bargain or the orderer is entitled, as a result of a delay in delivery which we are responsible for, to state that his interest in the fulfilment of the contract has ended.  
  2. Part deliveries are permissible.  
  3. If the customer is a consumer in the sense of § 13 BGB [German Civil Code], risk transfers to the orderer with the handing over of the goods sold according to § 446 BGB. In all other cases risk transfers to the orderer with the handing over of the ordered goods to the transport company according to § 447 BGB. We ship with regular insurance. The orderer can be informed about the provisions of the insurance contract if he so wishes.
  4. Goods not retrieved but prepared can be stored at the orderer’s cost and risk.
  5. If in a particular case we agree to the cancellation of an order out of goodwill, this is not effective until we provide our written confirmation.
  6. Strikes, delays in transport and supply, official prohibitions and similar occurrences which arise outside of our area of influence interrupt the delivery deadlines and prolong these commensurately.

IV. Retention of ownership, set-off

  1. The delivered goods remain our property until all debts from the contract are satisfied; if the orderer is a legal entity under public law or a businessman exercising his commercial or independent professional activity, this is also the case from the current commercial relationship up to the settlement of all claims which we are entitled to in connection with the contract vis-à-vis the orderer. If the goods ordered are withdrawn by us, provided that the provisions of the “Verbraucherkreditgesetz” [German law on consumer credit] do not apply, there is no rescission of the contract unless we have stated this expressly in writing. In the case of seizure or other interventions by third parties in the goods ordered, the orderer is to inform us of this immediately in writing in order that we can make a claim under § 771 ZPO [German code of civil procedure].
  2. The orderer is entitled to resell the delivered goods in the ordinary course of business; he however assigns to us as of now all debts amounting to the sum billed by us to the orderer (including the sales tax applicable at this time) which arise to him from the resell against his customer or against third parties, and indeed irrespective of whether the object of the delivery has been resold without or after processing. The orderer is authorised to collect this debt after the assignation. Our authority to collect the debt ourselves remains unaffected by this. We are however obligated not to collect the debt so long as the orderer properly observes his payment obligations and does not default on payment. If the orderer defaults on payment, we can demand that the debt assigned and its debtor are made known to us and that all statements necessary for the collection are made by the orderer and the documents for this are handed out and the third party is informed about the assignation by the orderer.
  3. The processing or alteration of the ordered goods by the orderer is always carried out for us. If the ordered goods are processed with other objects which do not belong to us, we acquire co-ownership in the new thing in relation to the value of the ordered goods to the other processed objects at the time of the processing. The same rules apply for the thing coming into existence following the processing as for goods subject to retention of ownership.  
  4. If the delivered goods are inseparably mixed with other objects which do not belong to us, we acquire co-ownership in the new thing in relation to the value of the ordered goods to the other mixed objects at the time of the mixing. If the mixing is carried out in such a way that the orderer’s thing is to be viewed as the principal, the orderer transfers co-ownership in the main thing to us proportionately to the extent mentioned above; the declarations required for this shall be given as of now. The orderer keeps safe the sole ownership or co-ownership for us.  
  5. The orderer assigns to us the claims against third parties to secure our debts which he acquired through combining the ordered goods with a plot of land.  
  6. We can demand the immediate return of the goods ordered and the claim for a debt with a third party for cause, in particular in the case of protests regarding bills of exchange or checks, applications to open an insolvency procedure or if there are comparable justified indications that the orderer is unable to pay. In these cases the fiduciary collecting power is considered revoked.  
  7. We are obligated to release the securities we are entitled to if the orderer demands it and its value exceeds 10% of the debts to be secured, insofar as these are not settled.  
  8. The orderer is only entitled to the right to set-off if his counter-claims have been recognised by us or the counter-claims are legally established. The orderer is only authorised to exercise a right of retention if his counter-claim is based on the same contract relationship. The above rules do not apply for guarantee claims attributable to the orderer.  

V. Defects, Quality

  1. The statements made in our type lists, brochures and other pamphlets for an indefinite number of addressees, do not represent any promise about properties. Particular technical requirements or statements on the purpose of the ordered goods are then only an object of the contract if we have confirmed this in writing. In all other cases we assume no responsibility for ordered goods being suitable for the orderer’s intended use, but rather we only assume the general guarantee according to Clause VI.  
  2. If the orderer is a legal entity under public law or a businessman exercising his commercial or independent professional activity, the following rules also apply: patent defects are to be reported at the latest within 5 (five) days after receipt, otherwise no claims can be made against us on the basis of such defects. The orderer is obligated to check all lots upon receipt of the goods for all technical requirements using reasonable testing methods, where applicable also with his customers, and in any case before using the ordered goods, and especially before fitting with other construction parts. If defects do not show until the beginning of manufacture or fitting, the manufacture and the fitting are to be stopped immediately. In all of these cases the orderer shall inform us immediately and give us the opportunity to investigate, including visiting, carrying out tests and viewing documents.  

VI. Guarantee, Liability

  1. Claims for defects by the orderer on the basis of material defects and deficiency in title in the ordered goods only exist if the orderer has properly fulfilled his obligations to examine and report according to § 377 HGB [German Commercial Code], insofar as the orderer is a legal entity under public law or a businessman exercising his commercial or independent professional activity.  
  2. If the reports of defects are justified, we are entitled – to the exclusion of the right of the orderer - to withdraw from the contract or to reduce the purchase price, or are obligated to make a subsequent performance, unless we are entitled to refuse the subsequent performance on the basis of the statutory provisions. The orderer is to guarantee us a reasonable period for the subsequent performance. The subsequent performance can be made through removal of the defect (repair) or the delivery of new goods; the orderer selects which. It is not possible to reduce the purchase price or rescind the contract during the subsequent performance. If the subsequent performance fails, the orderer can choose to demand reduction of the price or to declare the rescission of the contract. The orderer’s right to claim further compensation for damages according to the following provisions (Clause VI.3) remains unaffected by this.  
  3. We are liable in cases of intent or gross negligence in accordance with the statutory provisions. Our liability for guarantees is irrespective of fault. In the case of simple negligence we are only liable according to the provisions of the “Produkthaftungsgesetz” [German law on product liability] and/or on the basis of injury to life, body or health and/or on the basis of the breach of material contract duties (including claims based on delayed delivery if this deals with a time bargain, or the orderer is entitled, as a result of a delay in delivery which we are responsible for, to state that his interest in the fulfilment of the contract has ended). The claim for compensation for damages for simply negligent breaches of material contract duties is however limited to damages which are foreseeable and typical to the contract, insofar as there is no liability for injury to life, body or health. Insofar as our liability is excluded or limited, this also applies for the personal liability of our salaried employees, employees, staff, representatives and persons assisting in the performance of obligations.  
  4. The guarantee period amounts to 12 (twelve) months if the orderer is a legal entity under public law or a businessman exercising his commercial or independent professional activity. The statutory period of guarantee applies in all other cases.

VII. Commercial property rights and copyrights

If a third party makes justified claims against the orderer on the basis of the breach of a commercial property right or copyright (hereinafter: “property rights”) through the goods delivered by us which are used in accordance with the contract, we are liable vis-à-vis the orderer as follows:

  1. We shall choose to either purchase the right of use for the product at our own costs, change the product in such a way that a property right is no longer breached, or exchange the delivered product. If it is not possible for us to do this, we are obligated to take back the delivered goods against compensation of the purchase price.
  2. The abovementioned obligation only exists if the orderer notifies us immediately about the claims made by third parties, does not recognise a breach and reserves to us all defence reactions and possibilities of settlement. If and for whatever reason the orderer stops using the product after a complaint, the third party is to be informed that stopping use is not recognition of a breach of a property right.
  3. Claims are excluded if the orderer is responsible for the breach of the property right. This applies in particular if the breach of the property right is caused by a special requirement of the orderer, through an application of the product not foreseeable by us or caused by the goods delivered by us being altered by the orderer or used together with products not delivered by us.

VIII. Price, Payment

  1. The list price generally valid at the time of delivery applies unless another price has been expressly agreed in writing. Prices are fundamentally net, meaning that the statutory sales tax is acknowledged separately as the statutory amount on the day of the invoicing.  
  2. A cash discount requires a special written agreement. The purchase price is net (without discount) and payable immediately after receipt of the invoice by the orderer, insofar as no other date of required payment arises from the order confirmation. A payment is not considered to have been paid until we can dispose of the amount. Checks or bills of exchange shall only be received on account of performance.  
  3. We do not assume charges, taxes etc. in the country of receipt for the transaction.  
  4. Part payments in the sense of § 366 BGB [German Civil Code] shall fundamentally always be set off with the oldest debt.  

IX. Final provisions

The ES&S general terms and conditions shall be recognised with an order. Should a provision of these general terms and conditions be wholly or partly ineffective or invalid or unenforceable for whatever reason, the validity of the remaining provisions remains unaffected by this. The ineffective provisions shall be replaced with the relevant statutory rule.