Standard Terms and Conditions of Sale and Delivery
1.0
General
1.1
Unless otherwise expressly agreed upon in writing, the terms and conditions of sale and delivery set forth herein shall be
exclusively valid for our deliveries and services. We will not recognize conflicting standard terms and conditions of the purchaser.
Within the scope of continuing business relations, our terms and conditions of sale and delivery shall remain valid for
future deliveries and services, even if they are not expressly agreed upon in each individual case.
1.2
2.0
Quotations
2.1
2.2
Our quotations are not binding and are to be understood merely as an invitation to place an order.
Unless expressly confirms by us in writing as binding, statements made in catalogues, brochures, flyers, advertisements,
illustrations, price lists and other documents concerning dimensions, weights, services etc. are to be considered as only
approximately definitive.
We reserve the right to make improvements and changes which may deviate from the descriptions contained in offers or
brochures as long as they do not infringe upon the objective of the contact not constitute an unreasonable demand on the
purchaser.
Models, samples, drawings, plans, descriptions, quotations and other documents remain our property and are covered by
our copyright. They may not be passed on or made available to third parties.
2.3
2.4
3.0
Coming into Effect of Contract
3.1
3.2
The purchaser shall be bound to his order for a period of 4 weeks from the date of dispatch of the order.
The contract shall come into effect only with the issuance of our written acknowledgement or the delivery of the goods
and/or services, which event is earlier.
Additional agreements, as well as telephone or verbal changes and supplements with respect to already acknowledged
orders require our written confirmation to become effective. Unless otherwise agreed, the goods to be delivered shall not
be exported.
3.3
4.0
Prices
4.1
4.2
4.3
Orders for which no prices have been agreed upon shall be invoiced using the list prices valid on the day of delivery.
Unless otherwise agreed in writing our prices shall be understood as for delivery ex works / warehouse. Packing, transport
costs and costs for transport insurance as stipulated by the purchaser as well as installation and operation materials will
be invoiced separately.
The sales tax valid on the day payment is due will be invoiced separately.
5.0
Payment, Delay, Prohibition of Compensation
5.1
Modes of payment other than by cash or bank transfer will not only be accepted if agreed upon in advance, and even then
only for the sake of fulfilment. Payments made by the cheque-draft procedure will not be considered as fulfilled until the
last draft has been honoured. The acceptance of a draft will only signify acceptance of a delay in payment when it has
been expressly agreed upon in writing. The purchaser will be liable for all interest, charges and taxes.
Discounts or cash discounts may only be deducted when they have been agreed upon in writing. A cash discount deduction may only be made when all payments associated with the contract have been received by us by the specified deadline.
If no special agreement has been made then payment is to be effected within 10 days after the invoice date with 2% cash
discount or within 30 days net without deductions. Payments for repairs are to be effected net without deductions within 14
days.
If the purchaser delays payment we shall been entitled to claim interest at the rate of 2 % above the discount rate of the
Deutsche Bundesbank valid at the time the delay began, but at least 6 % p.a.
A compensation of costs or claims with our invoice shall only be possible with a counter-claim recognized either by us or
by a court of law. A retention according to para. 273, German Civil Code is explicitly excluded. A retention due to a deficiency or a reason of a nonfulfilled contract will only be possible if the error, deficiency etc. has been recognized by us or if
a correction is impossible.
5.2
5.3
5.4
6.0
6.1
Deadlines, Delivery Times, Delays in Delivery
Delivery times begin with the dispatching of the order acknowledgement, however not before the purchaser has been
provided the necessary documents, approvals or releases and not before any down payment agreed upon has been
made.
6.2 The delivery time shall be extended accordingly in case of industrial disputes, in particular strikes and lockouts, as well as
in cases of force majeure or unforeseen obstructions beyond our control, as long as such obstructions can be proven to
have had an influence on the production or delivery of the ordered goods. This is also valid when sub-suppliers are affected by such circumstances.
6.3 In case of delays in delivery the purchaser has the following rights:
6.3.1
The purchaser can lodge a claim for damage clearly proven to be directly attributable to the delay. In cases of
minor negligence the supplier´s liability will be one half of one percent of the net purchase price. No further
claims will be considered.
6.3.2
6.4
The purchaser can set a new deadline for delivery the goods, after which he may refuse to accept delivery. If a
deadline is passed without a result the purchaser will be entitled to cancel the order or to lodge a claim for damages due to non-fulfilment. The claim for damages is limited in accordance with clause 11.
If our operations are so influenced by the circumstances cited in clause 6.2 that we cannot reasonably be expected to
carry out the order then we shall be entitled to withdraw from the contract.
7.0
Shipment, Passing of Risk
7.1
The choice of shipping route, the type of carriage as well as of the carrying agent is our responsibility, unless otherwise
expressly agreed in writing. We assume no guarantee for the lowest shipping costs.
The risk will be pass to the purchaser according to the terms of the shipping contract, even if we have been given a contract for the later installation of the equipment at the purchaser´s premises. If shipment is delayed due to circumstances for
which the purchaser is responsible, then the risk shall pass to the purchaser on the day on which the purchaser was given
notification of readiness of shipment.
7.2
8.0
Guarantee
8.1
We guarantee the equipment to be free of constructive or material defects in accordance with the latest state of the art as
well as with the technical standards valid in the Federal Republic of Germany. We cannot guarantee compliance with any
foreign standards (including those of other EC states) unless this has been expressly agreed upon in writing for each individual case.
Assured qualities are defined as only those for which we have expressly certified in writing that we are willing to assume a
guarantee.
8.2
9.0
Notification of Deficiencies
9.1
The purchaser is required to inspect the delivered goods directly after receipt and notify us to any apparent deficiencies
within 10 days. Failure to give written notification of deficiencies will result in the goods being regarded as accepted.
If the purchaser is a merchant, he is also required to give written notice of non-apparent deficiencies immediately after
their discovery as otherwise the goods will be regarded as accepted.
9.2
10.0 Rights Associated with the Guarantee
10.1 In case of deficiencies or if assured characteristics are missing we are entitled and obliged to make improvements or
repairs. At the same time we may also choose to make a new delivery, but the purchaser is not entitled to demand a new
delivery. Only when improvements or repays are impossible, several unsuccessful attempts at improvement or repair have
been made, or the improvement or new delivery has not been carried out can the purchaser demand a reversal of the contract or a reduction in price. The new delivery is to be effected within a reasonable period of time paying due regard to the
interests of both parties.
10.2 Claims for damages, particularly claims for replacement for damages not incurred by the delivered goods themselves will
not be accepted unless the damage done by us was deliberate or the result of gross negligence. The responsibility for assured characteristics is not affected by this clause.
10.3 In the case of improvement, costs of transport, handling, labour and material will only be assumed by us as long as the
costs have not become higher as a result of the delivered goods having been transported after delivery to a place other
than the place they were originally delivered to.
11.0 Claims for Liquidated Damages
11.1 In case we are required to pay liquidated damages on the basis of either this contract or legal stipulations, our liability will
be limited as follows:
to the full value of the damages in the case of serious error on our part or on the part of any of our management
staff, in the case of criminally caused injury to persons as well as in the case of assurances of characteristics made
to conceal the risk of possible deficiency-related consequential damage.
to the costs associated with injuries to persons and damage to property within the limits of liability as determined in
the Product Liability Act of Federal Republic of Germany.
no liability for deficiency-related consequential damage in cases of assurances of characteristics which have an effect merely on the contractual conformance of the delivery / service.
otherwise, under consideration of the reasons, liability in the case of any negligent infraction of important contractual requirements.
outside of these requirements, under consideration of the reasons, liability in the case of serious error on the part of
our personnel or the personnel of one of our sub-contractors.
in the last two case groups mentioned, to the repair costs associated with a typical predictable extent of damage.
12.0 Liens on Proprietary Rights
12.1 The delivered goods shall remain our property until such time as all claims resulting from the transaction between ourselves and the purchaser have been fully settled. Neither the adjustment of claims via a current invoice nor the effecting of
payments and their acceptance will have any effect on the proprietary rights.
12.2 The purchaser is entitled to re-sell goods under lien in normal business transactions, but he is not allowed to montage the
goods or to transfer their proprietary rights as security. In the case of mortgaging or transfer of the proprietary rights as security in expectation of the goods becoming the property of the purchaser is obliged to inform the receiver of the security
that the goods are still our property and to inform us immediately of the mortgaging or offering of the goods as security. In
re-selling the goods under lien on credit, the purchaser is further obliged to secure our rights and in particular to pass on
the lien on the proprietary rights.
12.3 Rights resulting from any claim made by the purchaser in connection with the re-sale of any goods under lien are considered as already assigned to us up to the amount of the agreed purchase price. We accept this assignment. If an assignment of claims is not possible due to the terms of the re-sale agreement, then the purchaser will only be entitled to re-sell
goods under lien if we have given our express consent in writing. This will also be valid if the claim from the re-sale is to be
set against a current invoice. Independent of whether or not in this case the re-sale is transacted illegally or with our consent, the purchaser´s rights to receive payment are considered as already to us up to the extent of the invoiced amount.
12.4 Notwithstanding the assignment and our rights to draft, the purchaser is entitled to effect drafts for as long as he is able to
fulfil his obligations to us and does not become insolvent. In the case of a grave deterioration of the purchaser´s financial
position the draft rights will become null and void. A grave deterioration of the purchaser´s financial position will be taken
as an unequivocal sign of impending insolvency or filing for bankruptcy or the proclamation of receivership. At our request
the purchaser will be obliged to provide us with all information necessary for us to be able to effect a draft and to inform
the debtor of assignment duly signed by himself at any time even if he himself is entitled to effect a draft.
12.5 Any finishing or processing of the goods under lien carried out by the purchaser for us will not result in our assuming any
obligations. In the case of treatment, connection, mixing or combining of the goods under lien with other materials not belonging to us we shall retain partial ownership rights on the new finished product created thereby in the proportion of the
invoiced value of the goods under lien to the value of the other goods used at the time the treatment, connection, mixing or
combining took place. In the case that the purchaser obtains sole ownership of the new product, the contractual partners
agree already that the purchaser will grant us partial ownership of the new product in the proportion of the invoiced value
of the treated, connected, mixed or combined goods under lien to the value of the new finished product. Furthermore, it is
also agreed already that the purchaser will store the new product for us without charge.
12.6 If the goods under lien are immediately re-sold together with other goods, be with or without treatment, connection, mixing
or combining, then the advance assignment agreed upon above will be valid only up to the invoiced value of the goods
under lien which are re-sold together with the other goods.
12.7 The purchaser is obliged to insure goods delivered under lien against fire and water damage until such time as he has
obtained the full proprietary rights, and on demand to demonstrate that he has indeed done such.
12.8 We are obliged to release securities if and when the sum of the securities provided by the purchaser exceeds the total
value of claims resulting from the business transaction by at least 20 % and if requested to do so by the purchaser.
13.0 Arbitration, Binding Law
13.1 All legal disputes shall be settled by the court in whose jurisdiction we lie, in so far as the purchaser is a merchant or a
legal person in public law.
13.2 Mutual legal relations will be governed exclusively by the law of the Federal Republic of Germany. The unified UN sales
code (CISG) is not be valid.
14.0 Installation and Erection
14.1 The purchaser is obliged to assume the costs of all earth, concrete, building, electrical, scaffolding, stucco, painting and
other supporting works not normally within the scope of our services and all necessary building materials, and to ensure
the timely availability of the same.
14.2 The purchaser is obliged to take all necessary measures for the protection of our property and our installation personnel
on the construction site.
14.3 Prior to the start of the installation works the purchaser is obliged to provide all necessary information relation to the location of concealed power, gas or water lines or similar objects.
14.4 If the erection, installation or commissioning is delayed through circumstances beyond our control then the purchaser will
be liable for all the costs associated with the waiting period and further travel necessary for the erection or installation personnel.
14.5 We shall be liable only for the orderly handling and erection or installation of the delivered goods. We are not responsible
for the work performed by the installers or of our erection and other auxiliary personnel as long as their work is not directly
associated with the delivery and erection of our goods and was assigned by the purchaser.
14.6 The purchaser will compensate us for the costs of labour, travel and travel-related expenses including surcharges for
overtime, night work and work on Sundays and holidays in accordance with the agreements made on signing the contact.
14.7 In all regards the terms of our special erection and installation conditions will apply.
15.0 Repairs
15.1 In the case of free deliveries we take the responsibility for repair work necessary on equipment and parts delivered by us.
For the majority of all repaired equipment we deliver completely refurbished replacement equipment instead of the actual
equipment delivered to us for repair. The delivery of the replacement equipment follows within a short time. Usually for
large pieces of equipment, the repair costs for the equipment delivered to us for a standard replacement price are invoiced. The equipment to be repaired becomes our property as soon as the appropriate replacement equipment has been
shipped. The transfer of ownership for the replacement equipment does not follow until complete payment for the corresponding repair invoice has been effected. On making a special agreement, before delivery of equipment to be repaired
and at the latest with the placing of a repair order, the owner of equipment to be repaired can have his own equipment returned with an invoice for the individual repair costs. In this case the time required for the repair can be several weeks.
Rental equipment will only be provided on request and against payment of a rental fee including inspection costs.
Transport costs and risks will always be to the account of the purchaser.
EKOMAK Kompressoren GmbH  Eurotec-Ring 15  D-47445 Moers