Terms of Business

1  Validity of the GTCSP, Written Form
1. All business transactions between us and the purchaser or ordering party, referred to hereinafter as Customer, shall be governed solely by these GTCSP, supplementing any individual agreements reached with the Customer. 
We will not recognise other terms of the Customer - even if service is performed or payment is accepted without reservation - unless we expressly consent to their validity. 
2. These GTCS shall apply only in business transactions with entrepreneurs within the meaning of section 14 BGB [German Civil Code].
3. Even if they are not expressly referred to again, these GTCSP shall also apply for all future business relations until such time as we present new GTCSP. 
4. For evidential reasons, all agreements reached between us and the Customer within the scope of contract negotiations or for the purposes of execution of this contract must be laid down in writing and confirmed by both parties. 
5. Ancillary agreements, subsequent amendments to contracts and the assumption of a guarantee, in particular warranties of properties, or the assumption of a procurement risk, must be made in writing if they were given by persons without authority to represent. 

2  Advice
1. The advice we provide is product and service-specific advice relating solely to the products supplied and services performed by us. 
It does not extend to advice outside of contracts, i.e. statements that are given without products being sold or services being performed by us.
2. The consulting services we perform are based on empirical values. The forbearance of statements shall not constitute advice. 

3  Formation of Contract 
1. Our offers are subject to change and do constitute an invitation to submit an offer. 
2. The first offer will normally be made free of charge. Subsequent offers and design work will only be free of charge if the supply agreement becomes and remains valid. 
3. Descriptions and photocopies of our goods and products in technical documents, catalogues, brochures, circulars, advertisements and price lists shall not be binding if their inclusion in the contract was not expressly agreed; they shall not release the Customer from his duty of inspection. 
4. An order issued by the Customer shall in principle constitute an offer to conclude a contract. 
5. The order shall contain all information required for execution of the order. This shall apply for all supplies, work and services from us. These shall particularly, but not exclusively, include details of item designation, quantity, dimensions, material, material composition, pre-treatment, processing specifications, treatment guidelines, storage, standards and all other technical parameters and characteristic physical data.
Missing, deficient or incomplete information will be deemed expressly not agreed and will not establish any obligation on us, either in respect of claims to performance and warranty or in respect of claims to compensation.
6. If the order issued by the Customer differs from our offer, the Customer shall mark the differences clearly.
7. We shall have the right to obtain further information for the purposes of proper execution of the order.
8. Orders shall be given in writing or electronically (EDI); orders transmitted verbally or by telephone will be executed at the risk of the Customer 
9. We shall accept the order within four weeks unless a different acceptance period has been agreed. The order shall be accepted by us in writing and any amendments or supplements shall also be confirmed in writing. Written form shall also include communication by facsimile, data exchange and e-mail.
10. Our services shall derive from the confirmation of order. 

4  Call Orders 
Unless otherwise agreed, all call orders must be accepted within one year of the order being placed without this requiring any request to accept such orders. If this deadline passes, we shall be entitled to invoice the goods and ship them at the expense and risk of the Customer or to cancel the contract with immediate effect.

5  Changes, Deviations, Partial Deliveries
1. Any changes in the goods or services that are desired after formation of the contract shall require separate contractual agreement. 
2. We reserve the right to modify the goods or services appropriately if the information provided is deficient or incomplete. Detriment caused by deficient or incomplete information, in particular additional costs or losses, shall be borne by the Customer. 
3. We reserve the right to make technical modifications to the goods or services that do not jeopardize the purpose of the contract. 
4. Customary deviations in quantities are permitted. 
5. Part consignments and part services shall be permitted as long as this does not have more than a minor adverse effect on use and does not jeopardise the objective of the contract. They may be invoiced separately. 

6  Prices, Payment Terms
1. Unless otherwise agreed, all prices shall be understood in euros, net on an “ex-works” basis, exclusive of statutory value-added tax at the rate in force on the date of the invoice. Additional costs such as packaging, freight, shipment costs, customs duties, assembly, insurance and bank charges shall be charged separately. 
2. We shall be entitled to adjust the agreed price within reason if our manufacturing costs in terms of material components, energy or labour costs increase considerably, in other words by more than 5%, after the contract has been concluded. We shall provide the Customer with evidence of the reason for the increase on request. 
3. We shall have the right to modify the agreed price appropriately if modifications arise before or during execution of the order because the information and documents provided by the Customer were deficient or the Customer otherwise desires modifications.
4. Invoices shall be payable within 30 days net from the date of the invoice. In the event of non-payment when due, the Customer shall be in arrears without further warning. 
Other discounts, bonuses and reductions shall only be granted on the basis of a special agreement and shall become null and void in the event of the Customer being in default, insolvency proceedings being opened against the Customer’s assets or court action being taken to collect payment.
5. Part payments shall require separate written agreement. 
6. Settlement by bill of exchange shall require separate prior agreement. Discount charges and bill costs shall be borne by the Customer. The settlement of invoices by cheque or bill of exchange shall only be in lieu of performance and shall not be considered payment until they have been credited without reservation. 
7. If we have several outstanding claims against the Customer and if payments by the Customer are not made on a particular claim, we shall have the right to determine on which outstanding claim the payment was made. 
8. In the event of late payment, deferment or part payment, we are entitled to charge default interest at a customary bank rate, but at least 8 percentage points p.a. above the respective base rate, and to withhold further performances until all due invoices have been settled. The right to furnish evidence of a greater loss is reserved
9. In issuing the order the Customer confirms his ability to pay and creditworthiness.
If there is justified doubt about the solvency or creditworthiness of the Customer, for example due to repeated late payments, default or rejected cheques, we shall be entitled to demand security or cash payment on a quid pro quo basis. If the Customer fails to meet this demand within a reasonable deadline which has been set for it, we shall be entitled to cancel the non-fulfilled part of the contract. No such deadline shall be required if the Customer is clearly incapable of providing security, for example if an application has been made to open insolvency proceedings against the Customer’s assets. 
10. The Customer shall only be entitled to set off against our claims if its counter-claim is undisputed or has been fixed by a court of law. 
The assignment of claims against us shall require our consent.
11. The Customer will only have a right of retention if the counterclaim is founded on the same contractual relationship and is recognised or has been declared final in a court of law or if we have substantively breached our duties under the same contractual relationships despite written warning and have not offered any reasonable safeguards. 
If a performance by us is indisputably deficient, the Customer will have a right of retention only to the extent that the withheld amount is in reasonable proportion to the deficiencies and the anticipated costs of rectification. 
12. The payment dates shall continue to exist if delays in delivery occur through no fault of our own.
13. If no value-added tax is included in our invoice, in particular because we have assumed “an intra-community delivery” pursuant to Section 4 no. 1 b in conjunction with Section 6 a of the German Turn-Over Tax Act [UStG] in accordance with the data provided by the Customer, and we are then subsequently required to pay value-added tax (Section 6 a IV UStG), the Customer will have an obligation to pay to us the amount which we have been charged. This obligation applies irrespective of whether we are subsequently required to pay value-added tax, import turn-over tax or comparable taxes at home or abroad. 

7  Delivery or Performance Period
1. If a delivery or performance period has been agreed, this shall commence upon despatch of our confirmation of order, but not before all details of the order have been finally clarified, in particular all technical issues, and the Customer has duly fulfilled all his duties of cooperation, for instance in case of an agreed cash down payment by the Customer. This shall apply mutatis mutandis for delivery or performance dates.
2. New delivery or performance dates periods and dates shall be agreed in the event of unanimous modifications of the subject matter of the order. 
This shall apply even if further negotiations on the subject matter were held after formation of the contract without any modification of the subject matter having been undertaken. 
3. Delivery and performance periods or dates are subject to perfect and timely upstream supply and unforeseeable interruptions to production. 
4. The delivery period shall be observed if the goods have left our plant or have been delivered in our plant to the commissioned carrier or we have advised of readiness for collection by the time it expires. 
5. We shall have the right to perform the agreed delivery or service before the agreed date.
6. In the event that we are responsible for late delivery, the Customer may only cancel the contract if it has set a reasonable extended deadline with the express note that it will refuse to accept delivery after the expiry of said deadline. 

8  Default of the Customer
1. If the Customer fails to take delivery of the goods or services on the agreed delivery or acceptance date or at the end of the agreed delivery or performance period due to circumstances within his control, we may demand reimbursement for the additional expenses we incur thereby. 
In particular we shall have the right to invoice the Customer storage costs for each commenced month at 0.5%, but no more than 5% in total, of the price of the goods or services. The parties hereto shall have the right to furnish evidence of greater or lesser storage costs. 
2. We shall further be entitled to determine a suitable place of storage at the cost and expense of the Customer and to insure the goods or services at his expense. 
3. If we are entitled to demand compensation rather than payment, we may demand 15% of our price as compensation, notwithstanding the possibility of demanding higher actual damages, unless the Customer can provide evidence that we have not suffered any damages or our damages were considerably lower than this lump sum. 

9  Force Majeure
In cases of force majeure our delivery and performance periods shall be extended by the duration of the disruption.
This shall also include, but not exclusively, circumstances which are beyond our control such as war, fire damage, strikes, lock-outs, traffic problems, official orders, breaks in operations or major operational problems, difficulties in the procurement of materials or energy, lack of labour, energy or raw materials, difficulties with the procurement of licences, particularly import and export licences. This shall also apply if these difficulties affect our sub-contractors or suppliers and even if we were already in default when these circumstances occurred. 
We will inform the Customer at once of the start and end of any such hindrances. 
If the disruption is more than temporary in nature, but continues without interruption for at least 6 weeks, both we and the Customer shall have the right with exclusion of any compensation rights to withdraw from the contract in respect of the scope of performance affected by the disruption. 

10  Place of Fulfilment, Receipt and Acceptance, Passage of Risk, Packaging
1. The place of fulfilment for the services and payments specified in the order shall be our registered office at Rietheim-Weilheim. 
2. The Customer shall be bound to accept as soon as we have notified him of completion of the performances specified in the order and the performance is ready for and capable of acceptance. 
If the Customer does not accept the performance within a period set by us of two weeks from notification of completion, acceptance shall be deemed effected.
3. The Customer may not refuse to take receipt of the delivery on account of minor defects. 
4. If delivery is made on an ex-works basis in accordance with Incoterms 2010, the risk of destruction, loss or damage to the goods shall be passed over to the Customer after notification is given to the Customer that the goods are complete and ready for shipment. 
If shipping has been agreed, regardless of who ordered and organized the transport and bears the costs, the risk shall pass to the customer upon dispatch of the goods or their delivery to the carrier.
If shipment is delayed as a result of circumstances which are not our fault, the risk shall be passed to the Customer after notification has been given to the Customer that the goods are ready for shipment. 
5. In the case of shipping, we will determine the nature and scope of the packaging unless another agreement has been reached. Disposable packaging shall be disposed of by the Customer. 
6. If goods are shipped in leased packaging, these shall be returned carriage-free within 30 days of receipt of the delivery. The Customer shall be answerable for the loss of or damage to leased packaging. 
Leased packaging may not be used for other purposes or to package other items. They are intended only for transportation of the supplied goods. Labels may not be removed. 
7. If the goods are damaged or lost in transit, the Customer shall instigate an inventory at once and shall notify us of the results. On receipt any identified transport damage must be recorded on the shipping transfer note by the Customer. 
The Customer must assert claims from any damage in transit with the carrier at once. 

11  Duty of Inspection and Notification of Defects
1. The Customer undertakes to inspect the goods immediately after delivery in accordance with § 377 of the German Commercial Code (HGB) and to notify us of any defects and damage identified during this inspection or at a later date, at the latest one week after their discovery and to send us a reference sample of the affected consignment. Work and services shall be governed by section 377 HGB mutatis mutandis. Defects must be notified in writing.
2. The use of deficient goods or services is not permitted. If it was not possible to detect a defect when the goods were delivered or the service was provided, any such defect discovered during the further processing or use of the goods or services must result in an immediate stop to such further processing or use of the goods or services. 
3. The Customer shall transfer the notified goods to us and grant us the time required to inspect the notified defect. If the objections are unjustified, we reserve the right to charge the cost of inspection to the Customer.
4. The notification of defects shall not release the Customer from his duty to meet his payment obligations. 

12  Warranty 
1. If our goods or services have a defect, we shall have the right at our discretion to rectify the defect, make substitute delivery or perform again within a reasonable period of time. Only if the defect rectification by us fails or a replacement consignment is also defective may the Customer demand a reduction of the price or, in the event that the defects are not inconsiderable, cancel the contract and demand compensation. 
2. In the event that the goods are essentially outsourced products we shall be entitled to limit our liability initially to the assignment of warranty claims which we are due from the supplier of the outsourced products unless satisfaction from the assignment right fails or the assigned claim cannot be enforced for other reasons. In this case the Customer shall be entitled to the rights set out in Paragraph 1 above. 
3. Claims of the Customer on account of the expenses required for the purposes of renewed performance, in particular costs of transport, tolls, labour and materials, shall be excluded if the expenses increase because the goods or services were subsequently brought to a place other than the agreed place of performance,
4. Substitute performances and improvements shall be governed by the same warranty terms as for the item originally supplied. 

13  Deficiencies in Title, Industrial Property Rights
1. Orders based on drawings, sketches or other information given to us will be executed at the Customer’s risk. If we infringe third-party property rights as a result of the execution of such orders, the Customer shall indemnify us against and hold us harmless of all claims of the holders of these rights. The Customer shall bear all further costs and losses.
2. Our liability for any breaches of property rights in connection with the use of the goods or services or with the combination or utilisation of the goods or services with other products is excluded.
3. In the event of deficiencies in title, we shall at our option have the right:
- to purchase the necessary licences in respect of the breached property rights;
- or to rectify the deficiencies of the goods or services through the provision of goods or services that have been modified to an extent that is reasonable for the Customer.
4. Our liability for the infringement of third-party property rights shall extend only to those property rights that are registered and published in Germany. 
5. We reserve all property rights and copyright to the illustrations, drawings, calculations and other (technical) documents provided by us. Any transmission to third parties shall require our prior written consent.
The Customer recognises our intellectual copyright to the design services performed by us. 

14  Liability
1. We will be liable for the liabilities of the company only with the company’s assets.
2. In the case of ordinary negligence we will only be liable for breach of a cardinal duty. If we are culpable through gross negligence, we will also be liable for breach of non-cardinal duties.
Liability in the above cases will be limited to the loss typically foreseeable under such a contract. 
In the case of warranted characteristics, our liability will be limited to the extent and the amount of our product liability insurance. The extent of the cover conforms to the non-binding recommendations for product liability insurance issued by the Gesamtverband der Deutschen Versicherungswirtschaft (German Insurance Association). The amount of the cover is EUR 5 million per year of insurance for the insured events covered in the insurance policy.
3. Claims to compensation based on an intentional breach of contractual duties by us, claims based on personal injury and claims arising from product liability laws are subject to statutory provisions.
4. For claims in tort we will be liable in accordance with contractual liability.
5. Any further liability for compensation other than as provided above is excluded. 
6. The Customer’s recourse claims against us shall only exist if he has not reached any agreement with his customer that extends beyond the statutory defect and compensation claims. 
7. Any liability of ours will be excluded if the Customer has effectively limited his own liability to his customers. 
8. If our liability is excluded or limited, this shall also apply for the personal liability of our employees, workers, staff, representatives or vicarious agents. 
9. Insofar as liability is ruled out or limited under the above provisions, the Customer has an obligation to also hold us harmless at first request in relation to claims by third parties. 
10. Statutory provisions shall otherwise apply.
11. The Customer shall be bound to notify us immediately in writing of any claims asserted by third parties and to reserve for us all protective measures and settlement negotiations.

15  Limitation Period
1. The limitation period for claims and rights based on defects of our products, work and services and the resulting losses is 1 year. The start of the limitation period shall be governed by statutory provisions.
The above reduction of the period of limitation does not apply if longer periods are prescribed by law in cases pursuant to Sections 438 para. 1 no. 2, 479 and 634 a para. 1 no. 2 of the German Civil Code [BGB]. 
2. The limitation period pursuant to number 1 above shall not apply in the case of intent, if we maliciously fail to disclose the defect or have assumed a quality guarantee, in the case of claims to compensation based on personal injury or the infringement of the liberty of a person, in the case of claims arising from product liability laws and in the case of a grossly negligent breach of duty.
3. Renewed performance measures shall neither suspend the limitation period applicable for the original performance nor cause the limitation period to begin again.  

16  Acquisition and Reservation of Title, Lien
1. We reserve title to our goods, hereinafter known as reservation of title goods, until all our claims from our business relationship with the Customer have been settled in full. 
2. If our property is processed, combined or mixed with third-party property, we shall acquire title to the new item in accordance with section 947 BGB.
3. If the processing, combination or mixing are performed in such a way that the third-party performance is to be regarded as the main item, we shall acquire title in the proportion of the value of our performance to the third-party performance at the time of processing, combination or mixing. 
4. If we acquire title to an item through our performance, we reserve title to this item until all claims arising from the business relations with the Customer have been settled. 
5. The Customer shall be bound to preserve the reserved goods with care and, where necessary, to perform maintenance and repair work in good time at his expense. The Customer shall insure the reserved goods at his expense against loss and damage. Security claims arising in the event of a loss shall be assigned to us. 
6. The Customer shall have the right to sell the item to which we have (joint) title in the ordinary course of business provided that he fulfils his obligations to us under the business relationship. For this case the claim arising from the sale shall be deemed assigned to us in the proportion of the value of our performance secured by the reservation of title to the total value of the sold item. The Customer shall retain the right to collect this claim even after assignment. This does not affect our right to collect this claim ourselves.
7. The Customer’s right to dispose of the goods under our reservation of title and to collect the claims assigned to us shall expire as soon as he no longer fulfils his payment obligations and/or a request for the opening of insolvency proceedings is filed. In the above cases and in the event of any other action by the Customer in breach of the contract, we shall be entitled to take back any goods supplied with reservation of title without notice and to cancel the contract. If we notify the Customer that we are cancelling the contract we shall also be entitled to use the reservation of title goods elsewhere. 
8. The Customer shall notify us at once if there are any risks for our reserved property, particularly in the case of insolvency, inability to pay and enforcement measures. The Customer shall at our request make all necessary disclosures concerning the existence of the goods to which we have (joint) title and concerning the claims assigned to us and shall inform his Customers of the assignment. The Customer shall assist us in all measures required in order to protect our (joint) title and shall bear the resulting costs.
9. We shall on account of all claims arising from the contract have a lien to the Customer’s items that come into our possession on the basis of the contract. The lien may also be asserted on account of claims arising from earlier goods or services if these are connected with the contractual goods or services. 
The lien shall apply for other claims arising from the business relationship if it is undisputed or has been declared final in a court of law. Sections 1204 et seq. BGB and section 50 (1) of the Insolvenzordnung [German Insolvency Code] shall apply mutatis mutandis.
10. If the realisable value of the securities exceeds our claims by more than 10%, we will at the Customer’s request release securities of our choice to that extent..

17 Return of the supplied goods
In general we shall not take back any item which has been sold and correctly delivered in perfect condition. Exceptions may only be made in special cases by prior agreement if the goods are in perfect condition. If we have agreed to take back the goods by way of goodwill, administration costs of 20% will be deducted from the Customer’s credit note. The goods must be returned to us free of charge to us and at the risk of the Customer. The goods must be well packed. Rework which is required as a result of defective packaging or other influences will be charged at cost. The return of special versions of goods which cannot be sold elsewhere shall be excluded. 

18 Tools
1. If special tools are required to complete the order, unless otherwise agreed we shall become and remain the owner of the tools manufactured by us or by a third party even if the Customer has paid part of the costs of the tools.
2. If expressly agreed, the tools shall only be used for orders placed by the Customer as long as the Customer meets its payment and acceptance undertakings. We shall only be obliged to maintain and replace these tools free of charge if such action is required to fulfil a production quantity which has been guaranteed to the Customer. An undertaking to store the tools shall expire two years after the last delivery of parts made using the tools and after prior notification of the Customer. 
3. The share of the tool costs shall be shown separately in the quotation and in the order confirmation; they shall be payable on a net basis when the contract is concluded. In addition, information should be provided therein whether and how any shares of the tool costs that have been paid will be amortised.
4. If it has been agreed that the Customer will become the owner of the tools, title to them shall pass to the Customer after the purchase price for the tools has been paid. The handover of the tools to the Customer shall be replaced by our duty of safekeeping for the tools. Regardless of the statutory claim for the tools to be handed over to it and of the service life of the tools, we shall be entitled to maintain sole possession of the tools until the acceptance of an agreed minimum quantity by the Customer or until after the elapse of a certain period of time. We shall mark the tools as the property of a third party and insure them at the request of the Customer and at its expense. 
5. If the Customer’s own tools as described in paragraph 4 are used or if the Customer provides the tools on a loan basis, our liability relating to the safekeeping and care of the tools shall be limited to the same duty of care as would apply if we owned the tools. The costs of maintenance and insurance shall be paid by the Customer. Our obligations set out in this § 18 shall become null and void if, after the completion of the order, a request is sent to the Customer to collect the tools and the Customer fails to collect them within 14 days after the request is made. 
6. If the Customer fails to meet its contract obligations in full, we shall be entitled to exercise a right of retention to the tools. 

19 Processing materials
The following provisions shall also apply if the Customer supplies us with materials for processing.
1. The goods for processing will only be inspected for defects and damage which are externally visible when we receive them. We shall not be obliged to conduct any other inspections. Any defects or damage found will be reported to the Customer within 10 working days of the discovery of the defect. 
2. The goods supplied to us must be made of material with standard properties which is suitable for processing, be true to size if they have already been processed and have dimensions, particularly in boreholes, which mean that they are easy to clamp and process using standard procedures. 
If these requirements are not satisfied, we shall notify the Customer of the additional work required and the resulting increase in price. 
If the Customer does not agree to the change in price, it shall be entitled to cancel the contract. This cancellation must be made immediately upon receipt of our notification about the changed circumstances. If the Customer decides to cancel the contract, it must make reasonable payment for the work already completed.
3. The production and preparation of special clamping equipment shall be charged separately. 
4. If the goods supplied by the Customer are unusable as a result of material flaws, we must be reimbursed with the processing costs we have incurred.
5. We shall not be liable for damages caused by inaccurate wording and identifiers on the goods supplied by the Customer.
6. The Customer undertakes to reimburse us with all damages including loss of profit which we incur as a result of our being supplied with material which is not suitable for processing. 
7. We shall not make any compensation for waste incurred up to the level which is accepted as standard in the industry.

20 Confidentiality
1. The Customer undertakes to treat in confidence all aspects of the business relationship that merit protection. He shall in particular treat as business secrets all commercial and technical details not in the public domain of which he becomes aware through the business relationship. The duty of confidentiality does not apply to information or aspects of the business relationship that were already in the public domain at the time of disclosure and such information or aspects of the business relationship that were already demonstrably known to the other party before disclosure by us.
The Customer shall ensure that his staff is also bound to confidentiality accordingly.
2. The duplication of documents provided to the Customer shall only be permitted within the scope of operational requirements and copyright laws. 
3. Without our written consent no documents, including planning documents, may be made accessible either wholly or in part to third parties or used other than for the purpose for which they were given to the Customer.
4. Any partial disclosure to third parties of the business relationship with us may only be made with our prior written consent; the Customer shall likewise bind the third parties to confidentiality within the scope of a similar agreement.
5. The Customer may only mention the business relationship with us in advertising with our prior written consent.
6. The Customer shall remain bound to confidentiality even after the end of the business relationship.

21 Jurisdiction and Applicable Law
1. The place of jurisdiction shall at our option be our place of business in Rietheim-Weilheim or the Customer’s place of jurisdiction. 
2. The business relationship with the Customer shall be governed solely by the laws of the Federal Republic of Germany. The applicability of the UN Sales Convention (CISG) is excluded. 
3. Should individual parts of these GTCSP be ineffective, this shall not affect the validity of the remaining provisions. The parties to the contract shall make every effort to replace the invalid provision with another provision which comes as close as possible to the commercial aim and legal sense of the original formulation and complies with the relevant statutory regulation.

22 Contact data
METU Meinig AG
Seitinger Str. 14
78604 Rietheim-Weilheim
Germany
Board of Directors: Jochen Meinig, Annette Meinig Theodossiou
Phone:    +49 (0) 7461 / 9287-0
Fax:    +49 (0) 7461 / 9287-28
Email:    info@metu.de
Internet:     www.metu.de
Court of registration: Stuttgart Local Court
Registration number: HRB 451 268
VAT registration number: DE 142 931 869