General Terms and Conditions of Sale, Delivery and Service (GTSD)

1. General information, scope of application

• These General Terms and Conditions of Sale, Delivery and Service (GTSD) apply to all our business relationships with our customers (hereinafter: "Customer"). The GTSD shall only apply if the Customer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
• The GTSD apply in particular to the sale and/or delivery of movable goods (hereinafter also: "goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 651 of the German Civil Code (BGB)) and for all other services rendered by us. The GTSD in their respective version shall also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods and/or other services by us with the same customer without us having to refer to them again in each individual case.
• Our GTSD shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall always apply, even if, for example, we carry out the delivery or service to the customer without reservation in the knowledge of the customer's general terms and conditions.
• Any individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTSD. A written contract or our written confirmation shall be authoritative for the content of such agreements.
• Any legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
• Any reference to the applicability of statutory provisions shall only be of a clarifying nature. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTSD.

2. Conclusion of contract

• Our offers are subject to change and non-binding. This also applies if we have provided the Customer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve ownership and copyright.
• The order placed by the customer shall be deemed a binding offer of contract. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 2 weeks of its receipt by us.
• Acceptance can be declared either in writing (e.g. by order confirmation) or by performance to the Customer.

3. Scope of the obligation to deliver

• Unless otherwise expressly stated by us in writing in the offer or in the order confirmation, information on dimensions, weights and shapes as well as illustrations are only approximate.
• In the case of custom-made products, e.g. screws, nuts, washers, we reserve the right to overproduce by up to 10 % in order to ensure that the agreed number of items is achieved. In this case, the additionally delivered items must also be accepted and remunerated at the agreed price.
• We are entitled to make partial deliveries insofar as this may be deemed reasonable for the Customer.
• Delivery shall be ex warehouse, which is also the place of performance. At the Customer's request and expense, the goods may be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

4. Delivery time

• Unless otherwise expressly agreed in writing, the stated delivery time is non-binding.
• If the binding nature of the delivery period is expressly agreed in writing, the delivery period shall commence on the date of our order confirmation, but not before all technical details are completely clear. It shall be deemed to have been met if the customer is notified of readiness for dispatch within the agreed period.
• The delivery period shall be extended - without prejudice to our other rights arising from default on the part of the customer - by the period during which the customer fails to fulfil due obligations to cooperate or counter-performance.
• If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this without delay and simultaneously notify the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction. Our statutory rights of rescission and termination as well as the statutory provisions on the performance of the contract in the event of an exclusion of the obligation to perform (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected. The Customer's rights of rescission and termination pursuant to Section 8 of these GTSD shall also remain unaffected.

5. Prices and terms of payment

• Unless otherwise agreed in individual cases, our prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
  We are entitled to adjust our prices to the new conditions in the event of increases in material prices, operating costs and/or wages during the execution of the order, insofar as the delivery is to be made or is made for a date later than 4 months after the conclusion of the contract.
• In the case of a sale by delivery to a place other than the place of performance (Section 3 (4)), the customer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges shall be borne by the customer. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the customer, with the exception of pallets.
• The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods, unless otherwise agreed.
• Upon expiry of the aforementioned payment deadline, the Customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. Our claim to the commercial due date interest rate (Section 353 of the German Commercial Code (HGB)) remains unaffected vis-à-vis merchants.
• The Customer shall only be entitled to rights of set-off or retention insofar as its claim has been legally established or is undisputed. In the event of defects in the delivery, Section 7 (6) shall remain unaffected.
• If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the customer's lack of ability to pay (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.

6. Retention of title

• We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and from an ongoing business relationship (secured claims).
• The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Customer undertakes to notify us immediately in writing if and to the extent that third parties seize the goods belonging to us.
• Should the Customer act in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the Customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
• The Customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall also apply.
• 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 deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
• The Customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
• The Customer shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets its payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in its ability to pay. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
• Should the realisable value of the securities exceed our claims by more than 10%, we shall release securities of our choice at the Customer's request.
• The retention of title in accordance with the above provisions shall also remain in force if our claims or individual claims of ours are included in a current account and the balance has been struck and recognised.

7. Transfer of risk

The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer upon handover. at the latest In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed to have taken place if the customer is in default of acceptance.

8. Customer's claims for defects

• The statutory provisions shall apply to the rights of the Customer in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse pursuant to Sections 478, 479 of the German Civil Code (BGB)).
• The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions which are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods; it makes no difference here whether the product description originates from the purchaser, the manufacturer or us.
• To the extent that the quality has not been agreed, it shall be assessed in accordance with the statutory regulation whether a defect exists or not (Section 434 (1) p 2 and 3 of the German Civil Code (BGB)). However, we do not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
• The Customer's claims for defects are subject to the condition that he has fulfilled his statutory obligations to inspect and give notice of defects (Sections 377, 381 of the German Commercial Code (HGB)). If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. The notification shall be deemed to have been made without delay if it is made within two weeks, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Customer shall notify us in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notification shall also suffice to meet the deadline. If the Customer fails to carry out the proper inspection and/or give notice of defects, our liability for the non-notified defect is excluded.
• If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Our right to refuse the chosen type of supplementary performance under the statutory conditions remains unaffected.
• We are entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Customer is entitled to retain a reasonable part of the purchase price in relation to the defect.
• The Customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions.
• We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, if a defect is actually present. However, if a request by the Customer to remedy a defect turns out to be unjustified, we may demand reimbursement of the costs incurred from the Customer.
• In urgent cases, e.g. in the event of a risk to operational safety or to prevent disproportionate damage, the customer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We must be notified immediately of any such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.
• If the supplementary performance has failed or a reasonable deadline to be set by the Customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
• Claims by the customer for damages or reimbursement of futile expenses exist only in accordance with Section 9 and are otherwise excluded.

Other liability

• Unless otherwise stated in these GTSD including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
• We shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable
• for damages arising from injury to life, body or health.
• for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.
• The limitations of liability resulting from paragraph 2 shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the Buyer according to the Product Liability Act.
• The Customer may only withdraw from 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. A free right of termination on the part of the customer (in particular in accordance with Sections 651, 649 of the German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

10. Credit notes

• If the Customer returns any delivered goods to us with our consent, the Customer shall receive a corresponding credit note.
• If damages are found on the returned goods, we shall be entitled to revoke the return and the credit note.

11. Third party property rights

If goods are manufactured and delivered in accordance with drawings or other information provided by the Customer and if this infringes the industrial property rights of third parties, the Customer shall indemnify us against all claims of the owner of the industrial property rights and compensate us for any damage.

Choice of law, place of performance and place of jurisdiction

• The law of the Federal Republic of Germany shall apply to these GTSD and all legal relationships between us and the purchaser to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. However, the prerequisites and effects of the retention of title pursuant to Section 6 shall be subject to the law of the respective location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective thereafter.
• If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the place of performance as well as the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Bremen. However, we are also entitled to bring an action at the Customer’s general place of jurisdiction.

13. Miscellaneous

The invalidity of individual provisions of the above terms and conditions of sale and delivery shall not affect the legal validity of the remaining provisions.

MOCK-GERÄTEBAU GmbH & Co. KG

Bremen, October 2009