AGB´s

General conditions of sale of
Gear Motion GmbH, Adolfstr. 57, 89584 Ehingen

§ 1. General information

These General conditions of sale (hereinafter also referred to as “Conditions”) apply when contracts are concluded by Gear Motion GmbH (hereinafter referred to as the “Seller”) with companies, legal entities under public law or a special fund under public law pursuant to § 310 paragraph 1 of the German Civil Code (hereinafter also referred to as “Client”, “Orderer” or “Buyer” ). All deliveries of the seller and the related services are made exclusively on the basis of these General conditions of sale. References of the buyer to its own General terms and conditions are hereby expressly rejected. The following terms of sale also apply to future business. Deviations from these terms and conditions require the express written approval of the seller. The buyer and the seller are jointly referred to in the following as the “Contracting parties”.

§ 2. Offer and contract conclusion

2.1 All offers of the seller are subject to change and are non-binding, unless they are expressly indicated as binding or contain a specific acceptance period. The seller can accept orders within fourteen days of receipt.

2.2  The only agreement that is decisive for the legal relationship between the seller and the buyer is the contract concluded between the seller and the buyer, which includes these conditions, which comes about through the order of the buyer (offer) and written order confirmation from the seller (acceptance), in the case of bindingly indicated offers by means of the offer and the order of the buyer. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the seller before the conclusion of this contract are legally non-binding and verbal agreements between the contracting parties are replaced by the written contract, unless they expressly state that these continue to be binding. Additions and changes to the agreements made, including these terms and conditions, must be in written form to be effective. Telecommunication transmission is sufficient for this, in particular by fax or email, provided the copy of the signed declarations is transmitted. With the exception of Managing directors or authorised signatories, the employees of the seller are not entitled to make verbal agreements that differ from this.

2.3  Information provided by the seller regarding the delivery or service (e.g. weights, dimensions, usage values, resilience, tolerances and technical data) and its representations of the same (e.g. drawings and illustrations) are only approximate, and although they are determined as best as possible, are non-binding for the seller, unless a contractual agreement exists. They are not guaranteed quality features, but are rather descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts are permitted, provided they do not impair the suitability for the use stipulated in the contract.

2.4  The seller reserves ownership and/or copyright of all offers and cost estimates submitted by it, as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. Without the express written consent of the seller, the client may not make such objects or their content accessible to third parties, disclose them, use or reproduce them or have them used or reproduced. At the request of the seller, it must return these items in full to the seller and destroy any copies that may have been made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 3. Prices and payment

3.1 The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. The prices are gross in EURO for net ex works including loading in the factory, but excluding unloading, unless otherwise agreed between the buyer and seller in writing. VAT is added to the prices in the respective statutory amount, customs duties as well as fees and other public charges for export deliveries. For deliveries and services in the EU, the buyer must inform the seller of its respective sales tax identification number before executing the sales, under which it carries out the purchase taxation within the EU and must inform the seller whether there is a so-called chain transaction within the meaning of sales tax law.

3.2 In the absence of any special agreement, payment shall be made without any deduction to an account of the seller. Bills of exchange and cheques shall only be accepted on account of performance.

3.3 In the case of immediate delivery of the goods, the price list valid on the day of delivery is decisive, otherwise the price stated in the order confirmation or, if the order confirmation does not contain any price information, the price of the price list valid on the day of the order confirmation. The seller reserves the right to change the prices stated in the catalogues or the price lists attached to them.

3.4 The invoices are due and payable at the time specified in the invoice or as agreed between the contracting parties. Unless a special provision or agreement has been made, the invoice is due immediately without deduction and payable within 30 days of the date of the invoice. The date of the value of the invoice amount in the bank account of the seller is decisive for the timeliness of the payment.

3.5 The seller is entitled to carry out or provide outstanding deliveries or services only against advance payment or security, if after conclusion of the contract it becomes aware of circumstances which are likely to reduce the creditworthiness of the client significantly and which endanger the payment by the client of the outstanding claims of the seller from the respective contractual relationship (including from other individual orders to which the same framework contract applies). In such a case, the seller is also entitled to make due all claims against the buyer immediately.

3.6 Without prejudice to further claims, the seller is entitled to suspend further deliveries to the buyer in the event of payment arrears until all payment arrears from the business relationship have been settled, and to charge default interest in the amount prescribed by law and reminder fees in the event of late payment. In the event of payments after the due date, default interest of 9% p.a. above the base rate is calculated. In addition, the seller shall charge a flat rate reminder fee of € 40. The right to refuse checks or bills of exchange is expressly reserved. Discount and bill charges shall be borne by the buyer and are due immediately. The seller is not liable for timely presentation. When paying by check, the day of receipt is the day on which the amount of the check is irrevocably credited to the account of the seller. The seller is fundamentally entitled to offset payments against the older debts of the buyer and shall inform the buyer about the type of settlement. This also applies in the case of contrary provisions of the buyer. If costs and interest have already arisen, the seller is entitled to offset the payment first against the costs, then against the interest and finally against the main service.

3.7 The right to withhold payments or to offset against counterclaims is granted to the buyer insofar as the counterclaims are undisputed or legally established.

3.8 Should there be unforeseen price increases or reductions of more than 10% in the period between the conclusion of the contract and delivery that cannot be influenced by the seller due to price changes in the raw, auxiliary or operating materials used, the seller or the buyer is entitled to request the other contracting party to adjust the agreed purchase price by renegotiating it. The effectiveness of the contract shall otherwise remain unaffected by these renegotiations. If the renegotiations do not lead to an agreement, both the seller and the buyer are entitled to withdraw from the contract.

3.9 The same applies also if between the conclusion of the contract and delivery the consumer price index officially determined by the Federal Statistical Office in Wiesbaden for the entire Federal Republic of Germany unpredictably changes by more than 5% compared to the status at the time the buyer ordered.

§ 4. Delivery time, delivery delay

4.1 The delivery time results from the agreements of the contractual parties. Compliance by the seller presupposes that all commercial and technical questions between the contracting parties have been resolved and that the buyer has fulfilled all its obligations. If this is not the case, the delivery time shall be extended accordingly, unless the seller is responsible for the delay. Insofar as shipping has been agreed, delivery times and delivery dates refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.

4.2 If, due to the fault of the buyer, the shipment or the acceptance does not take place in time, the seller has the right to choose, after setting a period of grace of 12 days, either to issue an arrears charge or to withdraw from the contract or to claim damages.

4.3 The seller is not liable for the impossibility of delivery or for delays in delivery, insofar as these were caused by force majeure or other unforeseeable events at the time the contract was concluded, for which the seller is not responsible (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, delays in transport, strikes, lawful lockouts, lack of labour, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the missing, incorrect or not timely delivery by suppliers). If such events make delivery or performance significantly more difficult or impossible for the seller and the hindrance is not temporary, the seller shall be entitled to withdraw from the contract. In the event of temporary impediments, the delivery or service deadlines shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the client cannot be expected to accept the delivery or service as a result of the delay, it can withdraw from the contract by means of an immediate written declaration to the seller.

4.4 The buyer is entitled to withdraw from the contract without setting a period of grace if the seller is finally unable to provide the complete services before the transfer of risk. The buyer can also withdraw from the contract if it is impossible to execute part of the delivery for an order and if it has a legitimate interest in rejecting the partial delivery. If this is not the case, the buyer shall pay the contract price for the partial delivery. The same shall apply in the event of the inability of the seller.

4.5 If the seller defaults on a delivery or service or if a delivery or service becomes impossible for whatever reason, the liability of the seller shall be limited to compensation in accordance with § 9 of these conditions.

§ 5. Place of performance, shipping, packaging, delivery and acceptance

5.1 The place of fulfilment for all services from the contract concluded between the seller and the buyer is the place of business of the seller. If the seller also owes the installation, the place of performance is the place where the installation has to be carried out.

5.2 Unless otherwise agreed, the delivery of the goods takes place ex works in Germany - EXW according to Incoterms 2010. The shipping costs are borne by the buyer. The buyer can determine the carrier. The goods are to be sent unsecured. A shipping notification can be arranged. The shipment is insured by the seller only at the express request of the client and at its expense against theft, breakage, transport, fire and water damage or other insurable risks.

5.3 Packaging costs for special packaging, such as sleeves etc., shall be borne by the buyer, unless the parties agree otherwise.

5.4 Sorted and, in the case of combinations, partial deliveries that are suitable for sale are permitted, insofar as they are reasonable for the buyer or have been previously notified. Unsorted partial deliveries are only permitted with the consent of the buyer.

5.5 The risk is transferred to the buyer when the delivery item has left the works even if partial deliveries are made or the seller has undertaken other services such as the shipping costs or delivery and installation This applies regardless of which clause was agreed in individual cases according to Incoterms 2010. If acceptance is to be carried out, this shall be decisive for the transfer of risk. It must be carried out immediately on the acceptance date, according to the declaration of readiness for acceptance from the seller. The buyer may not refuse acceptance if an insignificant defect is detected.

5.6 If the shipping or the acceptance is delayed or not given due to circumstances which are not attributable to the seller, the risk shall pass to the buyer from the date of the notification of the readiness for shipping or readiness for acceptance.

5.7 The client shall bear the storage costs after the transfer of risk. When stored by the seller, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per week. The right to assert and prove further or lower storage costs is reserved.

5.8 If an acceptance has to take place, the purchased item is considered to have been accepted if

5.8.1  the delivery and, insofar as the seller also owes the installation, the installation is complete,

5.8.2  the seller has informed the client of this with reference to the assumed acceptance according to § 5 and has requested acceptance,

5.8.3  twelve working days have passed since delivery or installation or the client has started to use the purchased item (e.g. started up the delivered system) and in this case six working days have passed since delivery or installation, and

5.8.4  the client has refrained from accepting the goods within this period for any other reason than due to a defect reported to the seller, which makes the use of the purchased item impossible or significantly impairs it.

§ 6. Retention of title

6.1 The goods remain the property of the seller until full payment of all claims from deliveries of goods from the entire business relationship between seller and buyer, including ancillary claims, claims for damages and cashing checks and bills of exchange. The retention of title remains even if individual claims of the seller are included in a current invoice and the balance is drawn and recognised.

6.2 If the goods subject to retention of title are combined, mixed or processed by the buyer to form a new movable item, this is done for the seller without any obligation for the seller arising from this. Through the connection, mixing or processing, the buyer does not acquire ownership of the new item pursuant to §§ 947 ff. of the German Civil Code. In the case of connection, mixing or processing with items that do not belong to the seller, the seller acquires co- ownership of the new item according to the ratio of the invoice value plus VAT of its retained goods to the total value. For the item resulting from the processing, the same applies as for the object of purchase delivered which is subject to retention.

6.3 If a central regulatory body that takes over the del credere is involved in the business transaction between seller and buyer, the seller transfers ownership to the central regulatory body when the goods are dispatched, with the condition precedent of payment of the purchase price by the central regulator. The buyer is only released after payment by the central regulator.

6.4 The buyer is only entitled to resale or further processing under consideration of the following conditions.

6.5 The buyer may only sell or process the goods subject to retention of title in the ordinary course of business and insofar as its financial situation does not deteriorate sustainably.

6.6 The buyer hereby assigns the claim with all ancillary rights from the resale of the goods subject to retention to the seller including any balance claims.

6.7 If the buyer has sold the claim within the scope of real factoring, the buyer assigns the claim against the factor that takes its place to the seller and forwards to the seller its sales proceeds proportionately to the value of the rights to the goods of the seller. The buyer is obligated to disclose the assignment to the factor if it is more than 10 days past due with the settlement of an invoice or if its financial situation deteriorates significantly. The seller accepts this assignment.

6.8 The buyer is authorised to collect the assigned claims as long as it meets its payment obligations. The direct debit authorisation expires in the event of late payment by the buyer or in the event of a significant deterioration in the financial situation of the buyer. In this case, the seller is hereby authorised by the buyer to inform the receivers of the assignment and to collect the claims itself.

6.9 For the assertion of the assigned claims, the buyer must provide the necessary information and allow the verification of this information. In particular, it must provide the seller with a precise list of the claims to which it is entitled on request, with the name and address of the client, the amount of the individual claims, the invoice date, etc.

6.10 If the value of the security existing for the seller exceeds all of its claims by more than 10%, the seller is obligated to release security at its option upon request of the buyer.

6.11 If third parties access the goods subject to retention of title, in particular by seizure, the buyer shall immediately inform them of the property of the seller and inform the seller of this in order to enable it to assert its property rights. If the third party is unable to reimburse the seller for the judicial or extrajudicial costs incurred in this connection, the buyer shall be liable to the seller for this.

6.12 If the seller takes back the delivery item in exercising its retention of title, the contract shall only be withdrawn if the seller expressly declares this. The seller can satisfy itself by directly selling the goods subject to retention taken back.

6.13 The buyer stores the goods subject to retention for the seller free of charge. It must insure them against the usual dangers, such as fire, theft and water, to the usual extent. The buyer hereby assigns to the seller its claims for compensation, which it is entitled to from insurance companies or other persons liable to pay compensation, in the amount of the invoice value of the goods. The seller accepts this assignment.

§ 7. Warranty

7.1 The warranty period is one year from delivery or, if acceptance is required, from acceptance.

7.2 The delivered items must be carefully examined immediately after delivery to the client or to the third party determined by it. Notices of defects must be reported to the seller within 12 days of receipt of the goods at the latest.

7.3 After cutting or otherwise started processing of the delivered goods, any complaint about pending defects is excluded.

7.4 Minor, technically unavoidable deviations in quality, colour, width, weight, equipment or design may not be objected to. This also applies to deviations customary in the trade, unless the seller has declared a delivery that is true to the sample in writing. In the case of justified notices of defects, the seller has the right to rectification or delivery of replacement goods free of defects. In this case, the seller shall bear the freight costs. For the execution of all subsequent improvements and replacement deliveries deemed necessary by the seller, the buyer shall, after agreement with the seller, give the seller the necessary time and opportunity; otherwise, the seller shall be released from liability for the resulting consequences. Only in urgent cases of endangering operational safety or to prevent disproportionate damage, whereby the seller is immediately to be informed, the buyer has the right to rectify the defects itself or by a third party and to demand compensation from the seller for the necessary expenses. At the request of the seller, the objectionable delivery item must be returned to the seller carriage paid. If the complaint is justified, the seller shall reimburse the cost of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.

7.5 The buyer shall have the right to withdraw from the contract within the scope of the statutory provisions if the seller, taking the legal exceptions into account, allows a reasonable time limit set for the repair or replacement delivery to elapse unsuccessfully. If there is only an insignificant defect, the buyer is only entitled to a reduction in the contract price. The right to reduce the contract price is otherwise excluded.

7.6 Claims for damages due to defects in the subject of the contract can only be asserted under the restrictions set out in § 9.

7.7 No liability is assumed for the subject of the contract, in particular in the following cases:

7.7.1  Inappropriate or improper use, incorrect assembly by the buyer or third parties, natural wear and tear, incorrect or negligent handling, chemical, electrochemical or electrical influences, unless they are the responsibility of the seller.

7.7.2  If the buyer or a third party makes improper improvements, the seller shall not be liable for the resulting consequences.

§ 8. Intellectual property rights

8.1 If the use of the delivery item leads to the infringement of industrial property rights or copyrights in national territory, the seller shall, at its own expense, procure the buyer the right to continue using the goods or modify the delivery item in a reasonable manner for the buyer so that the infringement of rights no longer exists.

8.2 If this is not possible under economically reasonable conditions and within a reasonable period, both the buyer and the seller shall be entitled to withdraw from the contract. In addition, the seller shall release the buyer from undisputed or legally established claims of the owner of the property rights.

8.3 Subject to § 8.2, the obligations of the seller in § 8.1 are final in the event of a breach of property rights or copyright.

8.4 The obligations mentioned in § 8.1 and § 8.2 only exist if

8.4.1  the buyer immediately informs the seller of any infringements of property rights or copyrights,

8.4.2  the buyer adequately supports the seller in defending against the asserted claims or enables the seller to carry out the modification measures in accordance with § 8.1,

8.4.3  the seller reserves the right to all defensive measures, including out of court settlements,

8.4.4  the legal defect is not based on instructions from the buyer and

8.4.5  the infringement was not caused by the fact that the buyer changed the delivery item itself or used it in a manner not in accordance with the contract.

§ 9. Liability for damages due to fault

9.1 The liability of the seller for damages, regardless of the legal reason, in particular from impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with § 9, insofar as it is a matter of fault,

9.2 The seller shall not be liable in the event of simple negligence on the part of the seller or its organs, legal representatives, employees or other vicarious agents, insofar as it is not a violation of essential contractual obligations. Essential to the contract are the obligations for timely, defect-free delivery and installation, as well as advice, protection and care obligations, which should enable the client to use the delivery item in accordance with the contract or to protect the life or limb of personnel of the client or third parties or the property of the client from significant damage.

9.3  Insofar as the seller is liable for damages in accordance with § 9.2, this liability is limited to damages that the seller had foreseen when the contract was concluded as a possible consequence of a breach of contract or taking into account the circumstances that were known to it, or which it should have known, or had to have foreseen when applying the usual care. Liability for indirect damage (e.g. loss of profit or loss of use, etc.) is excluded to the extent permitted.

9.4  The above liability exclusions and limitations apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the seller.

9.5  Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.

9.6  The restrictions of § 9 do not apply to the liability of the seller due to wilful or grossly negligent behaviour, for guaranteed quality features, for injury to life, limb or health or according to the Product Liability Act.

§10. Compliance with export regulations

10.1  The buyer is obligated to observe all applicable national, European and US export control regulations, including all European or US sanction lists and other personal embargoes (collectively “export control regulations”), unless not permitted under § 7 of the German Foreign Trade Ordinance. It undertakes to inform the seller without being asked, with mention of the specific AL or ECCN number, in the event that goods to be delivered or their components are listed in the export list, Annexes I and IV or the Commerce Control List (“CCL”) . The buyer is obligated to notify the seller immediately in writing of all circumstances or suspicions that become known to it before or after the conclusion of the contract, which justify the assumption of a possible or actual violation of export control regulations. If such circumstances or suspicions exist, without prejudice to further claims of the seller, a delay in acceptance of the seller for a reasonable period of time is excluded in order to give the seller the opportunity to check.

10.2  The fulfilment of the contract on the part of the seller is subject to the condition that there are no obstacles due to national or international regulations of foreign trade law as well as no embargoes and/or other sanctions.

§ 11. Compliance with laws

11.1 The parties generally and for the duration of the contract, ensure the compliance with all applicable laws, ordinances and regulations, including all relevant anti-corruption laws and regulations, in particular the UK Bribery Act and the U.S. Foreign Corrupt Practices Act. The client shall not commit any prohibited actions in connection with the contractual services from this contract, either directly or indirectly. Prohibited actions include in particular the promising, offering or granting, or requesting or accepting an inadmissible advantage or benefit in order to influence actions in an inadmissible manner. Reference is made to the Code of Conduct of the contractor, which can be viewed on the website “www.mehler-ep.com”.

11.2 IftheclientviolatestheobligationinSection 11.1theselleris entitled to terminate this contract in writing without notice and without further obligations or liability towards the client. The client shall keep the seller completely free and without harm from all damages, losses, withholding payments, claims and claims of third parties, which result from or in connection with the termination.

11.3 The contracting parties undertake to comply with the provisions of the EU General Data Protection Regulation and the Federal Data Protection Act when processing personal data. Reference is made to the privacy policy of the seller, which can be viewed on the website “www.kap-precision.com”.

§ 12. Final provisions

12.1 For all legal relationships between the seller and the buyer, the law of the Federal Republic of Germany applies exclusively, which is decisive for the legal relationships between domestic parties.

12.2 The place of jurisdiction is the court responsible for the location of the seller. However, the seller is entitled to take legal action at the registeredofficeofthebuyer.

12.3 Insofar as the contract or these General terms of delivery contain gaps in the regulations, the legal regulations apply to fill these gaps.

Gear Motion GmbH Version 2.0, June 2020