General Terms and Conditions of Business, Delivery, and Installation between Sumcab Specialcable GmbH and Companies
(As of 2012)

1. GENERAL / SCOPE OF APPLICATION
1.1 The following general terms and conditions apply to business transactions with companies. The latter are referred to as the Client (AG).

1.2 These terms and conditions of sale apply to all contracts concluded between the Client and us for the delivery of goods and installation services. They also apply to all future business relationships, even if they are not expressly agreed again. Deviating conditions of the Client that we have not expressly recognized are not binding for us, even if we do not expressly object to them. These terms and conditions also apply if we unconditionally execute the Client’s order in the knowledge of conflicting or deviating conditions of the Client.

2. OFFER AND CONCLUSION OF CONTRACT
2.1 Our offers are non-binding. By ordering the goods, the Client declares bindingly that they wish to purchase the ordered goods. We are entitled to accept the contractual offer contained in the order within two weeks of its receipt by us. Acceptance can be declared either in writing or by delivery of the goods to the Client.

2.2 If the Client orders the goods by e-mail, we will promptly confirm receipt of the order. This confirmation of receipt does not yet constitute a binding acceptance of the order. The confirmation of receipt can be combined with the declaration of acceptance. In the case of orders placed electronically, we will store the contract text and send it to the Client by e-mail upon request along with these general terms and conditions.

2.3 The specifications set out in our offers or order confirmations conclusively define the properties of the delivery item. This also includes relevant documents such as illustrations, drawings, weights, and dimensions. We do not assume any guarantee, in particular for the durability or the specific characteristics of the delivery item.

2.4 All agreements made between the Client and us for the execution of the contracts are set down in writing in the contracts. We reserve the right to make changes and improvements to the design and execution.

2.5 We retain ownership, copyright, and other protective rights to all illustrations, calculations, drawings, and other documents. The Client may only disclose these to third parties with our written consent, regardless of whether we have marked them as confidential or not.

2.6 Insofar as software is included in the scope of delivery, it is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited. The purchaser undertakes not to remove or alter manufacturer information without prior written consent. All other rights to the software and documentation, including copies, remain with us or the software supplier. The granting of sublicenses is not permitted.

3. DELIVERY TIME

3.1 The start of the delivery time specified by us requires the clarification of all technical questions.

3.2 Compliance with our delivery obligation further requires the timely and proper fulfillment of the Client’s contractual obligations. The defense of the unfulfilled contract remains reserved.

3.3 We are entitled and permitted at any time to make partial deliveries and partial services, provided this is reasonable for the Client.

3.4 If the Client is in default of acceptance or culpably breaches other obligations to cooperate, we are entitled to claim compensation for the damage incurred by us, including any additional expenses. If the Client does not accept the agreed performance, we are entitled, at our discretion, to insist on acceptance or to demand 15% of the remuneration as lump-sum compensation for damages and expenses. Further claims or rights remain reserved.

3.5 If the conditions of paragraph 4 apply, the risk of accidental loss or accidental deterioration of the purchased item passes to the Client at the point in time when they fall into default of acceptance or debtor’s delay.

3.6 We are liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of § 286 (2) No. 4 BGB or § 376 HGB.

3.7 We are also liable in accordance with statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents is attributable to us. If the delay in delivery is due to gross negligence on our part, our liability for damages is limited to the foreseeable, typically occurring damage.

3.8 We are also liable in accordance with statutory provisions if the delay in delivery for which we are responsible is due to the culpable breach of an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.

3.9 Otherwise, in the event of a delay in delivery, our liability is limited to a maximum of 15% of the delivery value.

3.10 Further statutory claims and rights of the Client remain unaffected.

4. INSTALLATION AND ASSEMBLY

4.1 The purchaser shall, at their own expense and in good time, provide:

– the necessary items and materials required for assembly and commissioning, such as scaffolding, lifting gear, and other devices, fuel, and lubricants;

— Energy and water at the point of use, including connections, heating, and lighting;

— Sufficiently large, suitable, dry, and lockable rooms at the assembly site for storing machine parts, apparatus, materials, tools, etc., and appropriate work and break rooms for the assembly personnel, including adequate sanitary facilities as required by the circumstances;

— Protective clothing and protective devices that are required due to particular conditions at the assembly site.

4.2 Before the start of the assembly work, the Client shall, without being asked, provide the necessary information about the location of concealed electrical, gas, and water lines or similar installations as well as the required structural data.

4.3 If assembly, installation, or commissioning is delayed due to circumstances for which we are not responsible, the Client shall bear the reasonable costs for waiting time and any additional travel expenses incurred by us.

4.4 If we request acceptance of the delivery after completion, the Client must carry out the acceptance within two weeks. If this does not occur, acceptance shall be deemed to have taken place.

5. RETENTION OF TITLE

5.1 We retain ownership of the goods delivered and services provided until full payment of all claims arising from the business relationship with the Client, regardless of the legal basis. In the event of the Client’s breach of contract, such as default of payment, and after setting a reasonable deadline, we are entitled to withdraw from the contract and reclaim the reserved goods at the Client’s expense. We are entitled to realize the reserved goods after taking them back. The proceeds from the realization shall be set off against the amounts owed to us by the Client after deduction of a reasonable amount for realization costs.

5.2 The Client must handle the reserved goods with care and insure them at their own expense against fire, water, and theft damage at replacement value. Necessary maintenance and inspection work must be carried out by the Client in good time at their own expense.

5.3 The Client is entitled to sell the reserved goods in the ordinary course of business as long as they are not in default of payment. Pledges or transfers by way of security are not permitted. The Client hereby assigns to us in full, as security, all claims arising from the resale or from any other legal reason with respect to the reserved goods. We hereby accept the assignment. We authorize the Client, subject to revocation, to collect the claims assigned to us for their account in their own name. The collection authorization can be revoked at any time if the Client does not properly meet their payment obligations.

5.4 In the event of third-party access to the reserved goods, particularly in the case of seizures, the Client shall indicate our ownership and notify us immediately.

5.5 We are obliged to release the securities due to us to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall select the securities to be released.

5.6 Any processing or transformation of the reserved goods by the Client shall always be carried out for us. If the reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the new item resulting from the processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the Client’s item is to be regarded as the main item as a result of the mixing, the Client shall transfer co-ownership of the new item to us on a proportional basis, and we hereby accept the transfer. The Client shall hold our sole or co-ownership of an item in safekeeping for us.

6. TRANSFER OF RISK / SHIPPING

6.1 The shipping method, shipping route, and the carrier engaged for shipping may be determined by us at our discretion. We will endeavor to take into account the wishes and interests of the Client.

6.2 Loading and shipping are carried out uninsured at the Client’s risk.

6.3 In order to assert claims, the Client must report any obvious transport damage to the carrier or freight forwarder without delay and notify us in writing immediately upon receipt of the goods.

6.4 Upon request and at the Client’s expense, we will insure the delivery with transport insurance. We do not take back transport or any other packaging in accordance with the Packaging Ordinance, with the exception of pallets. The Client is responsible for disposing of the packaging at their own expense.

7. TERMS OF PAYMENT / PRICES

7.1 The price offered is binding. All prices are exclusive of the statutory value-added tax and shipping costs, unless otherwise agreed in writing. Additional services, such as extra delivery, assembly, or maintenance, are not included in the prices.

7.2 Invoices are due immediately upon delivery or acceptance and are payable without deduction. The Client will be in default of payment ten days after the due date. A payment is only considered made when we have access to the amount.

7.3 In the event of default of payment, we are entitled to charge default interest at a rate of eight percentage points above the respective base rate.

7.4 The Client is only entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognized by us, or are undisputed. The Client is only entitled to exercise a right of retention if their counterclaim arises from the same contractual relationship.

7.5 We are bound to offer prices that are not fixed prices for a period of four months after conclusion of the contract. If delivery or service is rendered later than four months after conclusion of the contract, we are entitled to request negotiations for a price adjustment in the event of wage or material price increases occurring after the offer was made, insofar as the delay in delivery or service is attributable to the Client.

8. WARRANTY FOR DEFECTS

8.1 The Client’s warranty claims require that they have properly fulfilled their obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). Obvious defects must be reported in writing without delay, but no later than ten working days after receipt of the service.

8.2 If there is a defect in the purchased item, we are entitled, at our discretion, to subsequent performance in the form of remedying the defect or delivering a new item free of defects. In the event of subsequent performance, we shall bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor, and material costs, provided these are not increased because the purchased item has been taken to a location other than the place of performance. Expenses are limited to the amount of the purchase price.

8.3 If the subsequent performance fails, the Client is entitled, at their discretion, to withdraw from the contract or demand a reduction in price.

8.4 We are liable in accordance with statutory provisions insofar as the Client asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. If we are not accused of intentional breach of contract, liability for damages is limited to the foreseeable, typically occurring damage.

8.5 We are liable in accordance with statutory provisions if we culpably breach a material contractual obligation; in this case, liability for damages is limited to the foreseeable, typically occurring damage. A material contractual obligation is one whose fulfillment the Client has relied upon and was entitled to rely upon.

8.6 To the extent that the Client is entitled to compensation for damages in lieu of performance, our liability is also limited, as under paragraph 3, to compensation for the foreseeable, typically occurring damage.

8.7 Liability for culpable injury to life, body, or health remains unaffected; the same applies to mandatory liability under the Product Liability Act.

8.8 Unless otherwise provided above, liability is excluded.

8.9 The limitation period for claims for defects is 12 months from the transfer of risk/acceptance.

8.10 The limitation period in the case of recourse claims under §§ 478, 479 of the German Civil Code (BGB) remains unaffected; it is five years from delivery of the defective item.

8.11 Only our product description shall be deemed agreed as the quality of the goods. Public statements, recommendations, or advertising do not constitute a contractual description of the quality of the goods. The Client does not receive guarantees from us in the legal sense.

9. OVERALL LIABILITY

9.1 Any further liability for damages beyond what is provided in Section III or Section VIII is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from the breach of other obligations, or from tortious claims for compensation of property damage pursuant to § 823 BGB (German Civil Code).

9.2 The limitation according to paragraph 1 also applies insofar as the Client demands compensation for useless expenditures instead of a claim for damages in lieu of performance.

9.3 To the extent that liability for damages on our part is excluded or limited, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives, and vicarious agents.

10. FINAL PROVISIONS

10.1 Erfüllungsort und Gerichtsstand für Lieferungen und Zahlungen (einschließlich Scheck- und Wechselklagen) sowie sämtliche sich zwischen uns und dem AG ergebenden Streitigkeiten aus den zwischen uns und ihm geschlossenen Verträgen ist unser Firmensitz.

10.2 Amendments and additions to this contract must be made in writing. This also applies to this written form requirement itself.

10.3 Should any provision of these terms and conditions or of the contract be or become invalid, the validity of the remaining provisions shall remain unaffected. German law shall apply to all services, including cross-border services, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

©Rechtsanwalt Joachim, Neuenstadt a.K. Stand 2012