REMA TIP TOP GmbH
Gruber Strasse 65

D - 85586 Poing near Munich

Status: January 2007


General Export Terms and Conditions for Sales, Delivery and Payment


§ 1 Scope of Application

1. All quotations and agreements are based on the conditions below and are considered to be accepted for the duration of the whole business relationship by placing the order or accepting the delivery. Deviating conditions, which have not been expressly accepted in writing, are not binding for us, even if they have not explicitly been contradicted.

2. The term "consumer" as used in these provisions complies with the legal definition in § 13 BGB (German Civil Code).

3. The term "entrepreneur" as used in these provisions complies with the legal definition in § 14 BGB.


§ 2 Prices – Payment Conditions

1. Unless otherwise stated in the order confirmation, prices apply ex works, transport packing excluded. The packing will be charged separately.

2. VAT is not included in the prices. It will be separately charged at the legal rate valid on the day of invoicing.

3. The purchase price or the invoice amount and prices for additional services fall due for payment on the handing over of the object of purchase or the acceptance of work and service and the delivery or remittance of the invoice.

4. All deliveries are generally made against cash, COD or prepayment. If the purchaser is a businessman and makes regular purchases, he will get a customer number granting him a payment term of 14 days from date of invoice without any further discounts. Invoices for services and repair work as well as invoices for miscellaneous services such as spare parts for machines and equipment as well as used materials are due immediately.

5. If the purchaser gets into arrears or if an essential deterioration of his capital occurs, our whole credit, including all credits for any other delivery made, will become due immediately. In this case we are entitled to charge interest on arrears according to § 288 BGB (German Civil Code).

6. If the purchaser gets into delay of payment, the processing costs for reminders connected with it will be charged to him.

7. The purchaser may only offset own claims against our claims, if his claims are acknowledged or covered by a legally binding title. He may only claim a right of retention as far as it is based on claims originating from the purchase contract or the contract for work and services.


§ 3 Delivery

1. Dates and times of delivery, which can be stipulated bindingly or not bindingly, shall be indicated in writing. The period of the delivery time shall start upon conclusion of the contract.

2. If we are prevented from delivering the article of sale on the agreed date or within the agreed time limit or from meeting the completion deadline accepted in writing, due to circumstances we have to account for, we shall be liable according to the legal provisions. If the delay in delivery is based on a breach of a not essential contractual obligation only, the purchaser may claim a flat rate of maximum 5 % of the value of the delivery or service for any damage caused by delay.

3. Force majeure and events temporarily preventing us – without any fault on our part – from supplying the delivery or service by the agreed date or within the agreed time, give us the right to delay the delivery or service by the duration of the impediment plus an appropriate period of adjustment. If the delivery time is extended or if we become discharged from our obligation, the purchaser shall not be entitled to derive any damage claims from this. If corresponding disturbances lead to a performance delay of more than 4 months, the purchaser has the right to withdraw from the contract. Other rights of rescission remain unaffected.

4. The purchaser is obliged to accept the delivery or service. If the purchaser gets into default of acceptance, we are entitled to receive compensation for any damage or loss encountered.

5. The producers reserve the right to amend construction or shape, to deviate from the colour tone as well as to modify the supply quantity during the delivery period, as long as – with regard to our interests – the modifications or deviations are reasonable for the purchaser. If we or the producer use signs or numbers for the marking of the order or the ordered delivery or service, no titles may be derived from this with regard to the specification of the delivery object or of the supply quantity.

6. We are entitled to partial delivery and partial performance at any time.


§ 4 Installation by Qualified Specialists
The purchaser is obliged to have the installation of the purchased goods carried out by qualified specialists.


§ 5 Estimates of Cost, Technical Documents

1. Quotations, estimates of cost, drawings, pictures, measures, weights, or other performance dates generally are not binding. They are only binding, if this is expressly stipulated in writing. Ownership and copyrights of estimates of cost, pictures, drawings, or other documents remain reserved.

2. A passing on to a third party is only permitted upon prior written consent.

3. Application technology advices – spoken and written – are only considered as not binding indications and do not release the purchaser from his own test obligation with regard to the intended purpose of application.


§ 6 Passing of Risk in Relation to Sales Contracts

1. The risk of accidental loss and accidental deterioration shall pass on to the purchaser upon handing over of the object.

2. In case the purchaser is not a consumer the risk shall pass to the purchaser when the object is passed on to the person executing the transport or when the goods have left our stock for the purpose of shipment.


§ 7 Liability for Material Defects in Relation to Sales Contracts

1. The limitation period for all newly manufactured goods is 1 year unless the purchaser is a consumer. Apart from that the legal limitation period of 2 years applies. For used goods the limitation period is 1 year if the purchaser is a consumer. Unless the purchaser is a consumer the sale of used goods is carried out to the exclusion of any liability for material defects.

2. Purchaser claims for defect removal are mainly limited to subsequent performance, i.e. to subsequent improvement or substitute delivery. Unless the purchaser is a consumer we have the option on subsequent improvement or substitute delivery. If the subsequent improvement or substitute delivery fails, the purchaser may demand reduction or withdraw from the contract. A subsequent improvement may be considered failed when and to the extent to which an appropriate time limit set for the subsequent improvement has elapsed without any result. The preconditions for the exercise of the right of withdrawal are defined by § 323 BGB (GCC).

3. The purchaser has to assert his claims to removal of defects from us.

4. In case of a defect based on a deficient instruction sheet, liability for material defects only comes into force if the mounting or the installation of the sold object has been carried out skilfully. The purchaser has to demonstrate and to prove the skilful execution.


§ 8 Extended Right of Lien and Liability for Material Defects in Relation to Contracts for Work and Services

1. Based on our claim arising from the order a contractual right of lien on the objects arrived in our possession by virtue of the order is due to us.

2. A contractual right of lien may also be claimed for works and other services executed earlier as far as they are associated with the order object. For other claims from the business connection the contractual right of lien only applies as far as these claims are unquestioned or a non-appealable title is submitted and the object of order is owned by the purchaser.

3. Purchaser Claims for material defects shall lapse after one year from the date of acceptance of the work or service. In case of purchaser acceptance in spite of his knowledge of a defect claims for material defects are only due to him if he has reserved them in the acceptance procedure.

4. Unless otherwise agreed the purchasers acceptance of the work or service shall be carried out on our premises.

5. If the object of order is the delivery of movables to be manufactured or produced and if the purchaser is a legal person under public law, a separate fund under public law, or an entrepreneur who – when concluding the contract – acts in the exercise of his commercial or self-employed professional activity, any claims of the purchaser for material defects will lapse after one year from the date of delivery. For other purchasers (consumers) the legal provisions shall apply.

6. If materials and/or indications (especially conditions of application, operating, and processing, recipes, specifications as well as other circumstances and parameters relevant for the work to be performed by us) supplied by the purchaser cause a defect, any liability on our part shall be excluded.

7. In all other instances our general terms and conditions in relation to sales contracts shall apply accordingly.


§ 9 Liability

We are liable according to the legal provisions, if the purchaser asserts claims for damages based on deliberate intent, fraudulent intent, or gross negligence including deliberate intent, fraudulent intent, or gross negligence of our representatives or vicarious agents.
Unless the purchaser is a consumer, the liability is limited to the predictable, typically occurring damage as far as we are accused of a grossly negligent breach of duty.
For the rest any further liability for damages is excluded; in this respect we are especially not liable for damages that do not occur on the delivery object, unless a violation of life, body and/or health is concerned.


§ 10 Recourse against the Entrepreneur when Selling to Commercial Resellers

1. If – within the scope of his commercial business – the purchaser has resold the purchased object to a consumer and has had to take this object back or has had to reduce the purchase price in consequence of the objects deficiency, he may assert claims for material defects against us.

2. Additionally the purchaser may demand refund of the expenses he has had to bear in his relationship to the consumer, if the defect claimed by the consumer already existed upon passing of the risk to the purchaser.

3. Within the scope of this recourse against the entrepreneur the purchaser shall not have the right to claim damages against us.


§ 11 Taking back of Goods / Restocking Fee

1. As far as we take goods back from the purchaser voluntarily, the following applies: only goods, which are not custom-made products or special orders, can be returned, if they are in a in proper, vendible condition. When goods are returned, the purchaser will receive a credit note for the amount of the value of the returned goods less a restocking fee. Such credit will not be paid cash but can only be offset against future purchases or orders.

2. The restocking fee amounts to 10 % of the value of every returned item.


§ 12 Reservation of Title

1. Any delivered object remains our property until all claims based on the purchase contract or the contract for work and services are fully settled. If the purchaser is a businessman, we retain the property in all delivered objects until receipt of all payments arising from the business connection.

2. In case of breach of contract on the part of the purchaser, especially in case of late payment, we shall be entitled to withdraw from the contract and to claim the release of the object under retention of title. The purchaser shall be obliged to return the object. After withdrawal we are fully entitled to exploit the delivery object. The purchaser is obliged to compensate the difference between the purchase price and the proceeds of exploitation. Furthermore we reserve the right to assert further claims against the purchaser.

3. The purchaser shall have the right to resell the delivered objects in his ordinary course of business. However, he already now assigns to us all claims for the amount he has invoiced to the consumer (including VAT), regardless of whether the delivered objects have been sold directly or after further processing. The purchaser remains entitled to collect the sums due also after their assignment to us. Our competence to ourselves collect the sums due remains unaffected thereof. We undertake not to ourselves collect the sums due as long as the purchaser fulfils his financial obligations according to the contract and as long as no application for opening of insolvency proceedings has been filed. If one of the latter circumstances has occurred, at our request the purchaser shall give us all particulars necessary to collect the assigned sums due and shall hand over all relevant documents as well as inform the respective debtor (third party) of the assignment.

4. Any processing or alteration of the goods by the purchaser will always be carried out in our favour. If the objects of delivery are processed with other objects not belonging to us, we shall acquire co-ownership of the object in the ratio of the value of the delivered objects to the other processed objects at the time of the processing.

5. If the objects of delivery are inseparably mingled or combined with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the delivered objects to the other components of the new objects. The purchaser shall keep the co-ownership in custody for us.

6. The purchaser shall neither pledge the delivered objects nor assign them by way of security. He shall immediately inform us of seizures, confiscations, or other decrees by a third party and provide us with all information and documents necessary to protect our rights. Executory officers or a third party have to be informed of our ownership.

7. In case the value of our securities will exceed the claims to be secured by more than 20 %, we are obliged to release the exceeding part on demand of the purchaser. We are free to choose which securities to release.

8. If the law covering the delivered object, does not permit the retention of title but allows us to reserve other rights regarding the delivered object, we may execute all rights of this kind. The purchaser is obliged to assist us in the measures we take to protect our ownership or the right taking our ownerships place in the delivered object.


§ 13 Data Protection
According to § 33 BDSG (German Data Protection Act) we point out that all data referring to purchasers and suppliers are recorded and processed by us with the aid of electronic data processing in compliance with said protection act.


§ 14 Place of Fulfilment / Jurisdiction / Governing Law

1. The place of payment is Munich. The place of delivery is determined according to the particular agreement based on the respectively valid Incoterms (International Commercial Terms). Unless stated otherwise, the goods shall be considered to be sold "ex works".

2. For all disputes arising from the contractual relationship a suit shall be filed with our head offices local court, if the purchaser is a businessman entered in the commercial register as businessman, a legal person under public law, or a separate fund under public law. We shall also be entitled to file a suit at the jurisdiction of the purchasers head office.

3. Only German Law is applicable. Any other regulations, including the laws regulating the international purchase of movables (especially the UN-Convention on Contracts of the International Sale of Goods), are excluded, even if the purchaser has his head office abroad.

4. If individual provisions of the contract with the purchaser including these General Terms and Conditions are or will become invalid in whole or in part, the validity of the remaining provisions shall be unaffected. The wholly or partially invalid provision shall be replaced by a provision whose economic success corresponds to the invalid one as closely as possible.