Terms and Conditions

General Terms and Conditions of Delivery and Payment of the MTS Systemtechnik GmbH Company

1. Validity

The following terms of delivery apply exclusively to all contracts, deliveries and other services, including consulting services, unless they are modified or excluded with the express written consent of the seller. The buyer’s conditions shall not become binding even if the seller does not expressly contradict them again.

2. Offer and completion

Offers are always subject to change, contract conclusions and other agreements become binding only by written confirmation of the seller. Overdeliveries or underdeliveries of 10% or at least one piece of the ordered quantity are permissible if they are customer-specified mechanical parts. The written contract or the order confirmation as well as other agreements confirmed in writing by MTS are decisive for the contents of the contract.

As far as sales employees or sales representatives make verbal side agreements or give assurances which go beyond the written purchase contract, these always require the written confirmation of the seller.

The documents belonging to the offer such as illustrations, drawings, weights and dimensions are only approximate.

If, after conclusion of the contract, the Seller becomes aware of facts which make the creditworthiness of the Buyer appear doubtful, the Seller shall be entitled to demand advance payment and corresponding securities and, in the event of refusal, to withdraw from the contract.

Company change or change in the person of the buyer entitle the seller to withdraw.

3. Delivery periods and delay

Delivery periods and dates shall only be regarded as approximately agreed, unless the seller has expressly given a written promise as binding. Partial deliveries are permissible.

The delivery period shall be reasonably extended – even within a delay – in the event of force majeure and all unforeseen hindrances beyond the control of the seller, insofar as such hindrances can be proven to have a considerable influence on the delivery of the sold item. This shall also apply if these circumstances occur at the Seller’s suppliers and their sub-suppliers. In important cases, the Seller shall inform the Buyer of the beginning and end of such hindrances as soon as possible. Delivery periods shall be extended by the period in which the Buyer is in default with his contractual obligations – also from other contracts.

The purchaser’s right to withdraw from the contract after the fruitless expiry of a grace period granted to the seller remains unaffected.

4. Shipping and transfer of risk

The dispatch takes place after best discretion of the salesman, however without guarantee for cheapest Verfrachtung. All shipments, including any returns, are at the expense and risk of the buyer. Insurance will be taken out at his request and at his expense. Unless otherwise agreed, the route and means of shipment shall be left to the seller’s choice. If dispatch is delayed through no fault of the Seller, the goods shall be stored at the expense and risk of the Buyer. In this case, notification of readiness for dispatch is equivalent to dispatch. Otherwise, the risk shall pass to the buyer when the goods are handed over to a forwarding agent or carrier, but at the latest when the goods leave the warehouse or are confiscated.

5. Packing

Packaging will be charged separately.

Light packaging such as cartons etc. will not be taken back. For means of transport returned late, the conditions of the manufacturer, the cable drum company or the seller apply.

6. Prices and payment

The prices are always quoted exclusive of value added tax at the applicable statutory rate.

Unless expressly agreed otherwise, payment must be made within 30 days of the invoice date without deduction or within 10 days less 2% discount in such a way that the amount agreed for the invoice settlement is available to the seller at the latest on the due date. Credit notes for cheques shall be made subject to receipt minus expenses with value date of the day on which the seller can dispose of the equivalent value.

In the event of default in payment, interest shall be payable in the amount of the respective bank rates for overdrafts, but at least 3% above the discount rate of the Deutsche Bundesbank, plus value added tax in each case.

Discounts shall not be granted if the Buyer is in arrears with payment for earlier deliveries. For each invoice issued by the seller, at the earliest 2 weeks after default of payment, a reminder fee of € 10,- will be charged. The set-off with any counterclaims of the buyer disputed by the seller is not admissible, as far as the claim is not legally established. If a notice of defects is asserted, payments by the buyer may be withheld to an extent which is in reasonable proportion to the defects which have occurred. However, if the contract is part of the business of his commercial enterprise, the buyer may withhold payments only if a notice of defect is asserted, the justification of which is beyond doubt.

7. Retention of title

a) The seller retains title to the goods until all claims of the seller against the buyer arising from the business relationship, including future claims arising from contracts concluded simultaneously or later, have been settled. This shall also apply if individual or all of the Seller’s claims have been included in a current account and the balance has been struck and acknowledged.

b) The Buyer shall only be entitled to resell the reserved goods in the ordinary course of business if he hereby assigns to the Seller all claims accruing to him from the resale against buyers or third parties. If reserved goods are sold unprocessed or after processing or combination with items which are exclusively the property of the buyer, the buyer hereby assigns to the seller all claims arising from the resale in full. If reserved goods are sold by the buyer after processing/combination together with goods not belonging to the seller, the buyer already now assigns the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the rest. The seller accepts the assignment. The buyer is authorized to collect these claims even after assignment. The authority of the seller to collect the claims himself remains unaffected; however, the seller undertakes not to collect the claims as long as the buyer duly fulfils his payment and other obligations. The seller can demand that the buyer informs him of the assigned claims and their debtors, hands over the relevant documents and informs the debtors of the assignment.

c) Any processing and treatment of the reserved goods shall be carried out by the buyer on behalf of the seller without any obligations arising for the latter. If the reserved goods are processed, combined, mixed or blended with other goods not belonging to the Seller, the Seller shall be entitled to the resulting co-ownership share in the new item in the ratio of the value of the reserved goods to the other processed goods at the time of processing, combination, mixing or blending. If the Buyer acquires sole ownership of the new item, the contracting parties agree that the Buyer shall grant the Seller co-ownership of the new item in proportion to the value of the processed or combined, mixed or blended reserved goods and shall keep them in safe custody for the Seller free of charge.

d) If, in connection with the payment of the purchase price by the Buyer, a bill of exchange liability of the Seller is established, the retention of title and the underlying claim from deliveries of goods shall not expire before the payment of the bill of exchange by the Buyer as drawee.

e) If the value of the existing securities exceeds the claims to be secured by more than 20%, the seller shall be obliged to release the securities at the buyer’s request.

8. Notice of defects and warranty

The Seller shall be liable as follows for defects, which also include the absence of warranted characteristics:

a) The buyer has to examine the received commodity immediately after arrival for quantity and condition. Obvious defects must be reported to the seller in writing immediately, at the latest within one week.

b) In the case of justified complaints, the seller may choose to repair defective goods, deliver a replacement, take back the goods and credit or credit the reduced value of the goods.

c) The Buyer shall grant the Seller the time and opportunity required at the Seller’s reasonable discretion to remedy the defect, in particular to remove the object complained of or samples thereof to make available to the government. If he refuses this, the seller is released from liability for defects.

d) Parts which are the subject of a complaint must be returned to the contractor immediately upon request and at the expense of the customer. The delivery note (packing slip) must be returned for all returns. If the return of goods for the purpose of a complaint proves that the complaint was unjustified, the Seller shall also be entitled to charge appropriate remuneration for the inspection of the goods.

e) The liability for the consequences arising from improper modifications and repair work carried out by the purchaser or third parties shall be cancelled.

f) Further claims of the buyer against the seller and his vicarious agents are excluded, in particular a claim for compensation for damages that have not occurred to the delivery item itself. This shall not apply in the event of intent, gross negligence or the absence of of warranted properties.

g) The seller accepts no liability for the failure of parts provided. All repair costs incurred as a result will be charged to the buyer.

9. General limitation of liability

The Seller’s liability shall be governed exclusively by the agreements made in the preceding section. Claims for damages on the part of the buyer arising from culpa in contrahendo, breach of secondary contractual obligations and tort are excluded, unless they are based on intent, gross negligence on the part of the seller or one of his vicarious agents. These claims expire six months after receipt of the goods by the buyer.

However, compensation shall not exceed the loss and loss of profit which the party who has breached the contract should have foreseen at the time of conclusion of the contract, taking into account the circumstances which it knew or should have known, as a possible consequence of the breach.

10. Repairs

If a cost estimate is requested before repairs are carried out, this must be expressly stated. The costs for the estimate shall be reimbursed.

Repairs are carried out without guarantee if there is no defect report. Whether a repair is carried out in the seller’s own workshop or in another workshop is at the discretion of the seller. Costs for dispatch and packaging shall be borne by the buyer.

Reference is made to Clauses 4 and 5 of the Conditions.

Repair devices will only be delivered against immediate payment.

11. Sales commitment

In the case of the purchase of products for which a marketing commitment exists, the special conditions of the manufacturer concerned shall apply in addition to these delivery conditions.

The buyer is obliged to obtain knowledge of the content of these conditions. He cannot invoke ignorance of these conditions.

12. Place of performance, place of jurisdiction, applicable law

Place of performance and exclusive place of jurisdiction for deliveries and payments (including cheque actions), as well as for all disputes arising between the parties, insofar as the buyer is a fully qualified merchant, a legal entity under public law or a special fund under public law, is the head office of the seller. The relations between the contracting parties shall be governed exclusively by the domestic German law applicable in the Federal Republic of Germany.

Status 2005-28-11