General Conditions of sale of HERMLE Labortechnik GmbH ("HLT")

§ 1 Scope of application
The present terms and conditions of sale apply for all current and future business transactions of HLT with customers, not beeing consumers according to Sec. 13 BGB (German Civil Code). They form a constituent part of HLT's quotations and a proviso for HLT's acceptance of offers from third parties. Any deviating agreements or terms and conditions on the part of customers are only accepted as binding if expressly confirmed in text form by HLT.


§ 2 Purchase Orders
(1) The Customer shall submit purchase orders to HLT in text form. A purchase contract is established only when the order has been confirmed by HLT in text form. The mutual rights regarding the individual purchase transactions and deliveries are governed only by the respective order confirmation from HLT and these General terms and conditions as well as the applicable laws. General terms and conditions of the Customer, if any, shall not become a contractual component hereof. Individual subsidiary agreements are valid only if confirmed by HLT in text form.
(2) Orders are binding and cannot be unilaterally withdrawn by the Customer. However, any order not confirmed by HLT within two weeks according to paragraph (1) shall terminate upon notice in text form from the Customer.


§ 3 Delivery
(1) Unless otherwise agreed for a particular order and confirmed in the order confirmation (sec. 2 (1)), delivery shall be effected ex works (EXW) HLT on the basis of the INCOTERMS® in their applicable version as amended from time to time (currently INCOTERMS® 2010)
(2) If the loading or transportation or delivery of the goods is delayed for any reason for which the Customer is responsible, then HLT shall be entitled to store the goods at its reasonable discretion at the expense and risk of the Customer, and to take all measures it deems suitable to preserve the goods, and invoice the goods as if delivered. The same applies if the Customer does not request delivery of goods within a reasonable period of time after receiving notice from HLT that they are ready for delivery. The statutory regulations on the default of acceptance shall remain unaffected.
(3) The goods are packaged as is usual in the trade. Packaging, means of protection and transport equipment are not taken back. Packaging going beyond the purpose of transport or any other special protection, e.g. for a longer-term storing or warehousing, requires a separate agreement.
(4) Upon handover of the goods to the carrier or forwarding agent, at the latest however when the goods leave the works, the risk passes to the Customer.


§ 4 Inspection of Incoming Deliveries
(1) The Customer shall examine the goods without undue delay after receipt for conformity and completeness of the order, as well as for externally noticeable damage and defects to the goods.
(2) The Customer shall provide notice of any loss and transport damage to the forwarding agent or carrier. If a loss of or damage to the transported goods is externally noticeable, the notification must be made at the latest upon delivery, otherwise in text form withinno later than 7 days off from delivery. The notification must sufficiently clearly specify the damage. The Customer shall inform HLT about the damage notice without undue delay in text form.
(3) In any case, the Customer must notify HLT in text form of any objections resulting from the examination according to paragraph (1) without undue delay, otherwise the goods shall be deemed approved. Hidden defects of quality must be complained without undue delay after detection in text form.
(4) If, according to agreement, the delivery is made not to the Customer, but to a third party named by it, the Customer shall impose the obligations under paragraphs (1) to (3) on such third party. The Customer remains obliged in addition to the third party.


§ 5 Terms of Payment
(1) Unless expressly otherwise agreed in the individual case and confirmed by HLT in the order confirmation (sec. 2 (1)), the Customer shall pay the purchase price in advance (cash before delivery) within two weeks of notification of the readiness for delivery by HLT. Instead of cash before delivery, the Customer may also pay by means of an irrevocable letter of credit (L/C) of a bank with registered office within the EU. The L/C must be made payable at Deutsche Bank AG in Villingen- Schwenningen, Germany. The payment may only be subject to the presentation of transport documents, insurance documents and trade invoices which show that the goods were handed over to the carrier or forwarding agent with proper insurance at the place of dispatch and under which the recipient is entitled to accept delivery of the goods. All costs are at the expense of the Customer. HLT reserves the right to reject a L/C in the case of any unclear, unusual or unrealisable terms or conditions.
(2) In the case of any failure to make payment, the Customer is charged with interest in the amount of 8 percentage points above the respective base rate according to Section 247 BGB (German Civil Code).
(3) If any subsequent circumstances occur which indicate a significant deterioration of the Customer’s financial situation and an endangering of a claim for payment, HLT shall be entitled to accelerate maturity of the payment obligation – irrespective of the term of any bill of exchange or cheque accepted on account of payment. Advance payment may be demanded for any still outstanding deliveries.
(4) The Customer may avert the acceleration of maturity and the advance payment obligation according to para. (3) by furnishing security in the amount of the endangered claims for payment. If the Customer within a reasonable time neither effects an advance payment nor furnishes an adequate security, HLT shall be entitled to withdraw from the corresponding transactions in which case the Customer shall not be entitled to claim compensation.
(5) The statutory regulations concerning default in payment shall remain unaffected.
(6) In the event of default in payment based on a noticeable deterioration of the Customer's assets, HLT shall also be entitled to withdraw without prior setting of a time limit.


§ 6 Retention of Title
(1) All delivered goods shall remain the property of HLT (“Conditional Goods”) until settlement of all receivables, in particular also the balance of receivables due to HLT against the Customer under the business relationship. The same shall apply to future and conditional claims. e.g. arising out of cheques and bills of exchange. HLT shall have authority to assign the payment claims.
(2) The Customer may only resell the Conditional Goods as part of its normal business operation subject to its normal terms of business and for as long as it is not in default, provided it reserves ownership, if legally possible and customary at it's place of business, and the receivables arising out of the resale transfer to HLT in accordance with paragraphs (3) and (4). It shall not have authority to dispose otherwise of the Conditional Goods. Use of the Conditional Goods in order to fulfil contracts for work shall also be deemed to be resale.
(3) The Customer’s receivables arising out of resale of the Conditional Goods are hereby assigned to HLT. They shall serve for security purposes to the same extent as the Conditional Goods itselves.
(4) If the Conditional Goods are resold by the Customer together with other goods, then HLT shall assign the receivables arising out of the resale in the ratio of the invoice amount of the Conditional Goods to that of the other goods.
(5) The Customer shall have authority to collect receivables arising from the resale, unless HLT revokes the collection authority subject to the criteria set out in sec. 5 paragraph (3) and (4). It shall be obliged at HLT's request to immediately inform its customers of the assignment to HLT, if HLT does not do so itself, and shall provide HLT with the information and documents required for collection purposes. The Customer shall in no circumstances have authority to assign the receivables.
(6) If the Customer falls into arrears with payment and if this indicates that realisation of a not inconsiderable proportion of the receivable may be in jeopardy, then HLT shall have authority to prohibit resale of the Conditional Goods, to collect the Conditional Goods and to enter the Customer's premises for this purpose if necessary. Collection shall not equate to withdrawal from this contract.
(7) The Customer must immediately inform HLT of any attachment or other impairment of the Conditional Goods by third parties.
(8) If the value of the existing collateral exceeds the secured claims by more than 10% in total, then HLT shall be obliged to release collateral to this extent at the Customer’s request; HLT shall be permitted to make the selection.
9) Inasmuch as special measures are required for validity of the reservation of ownership according to the law of the country in which the Customer is domiciled, then the Customer hereby undertakes to co-operate with such measures. It specifically hereby gives its approval to the registration of all reservations of ownership arising out of the business relationship with HLT in the relevant register of reservations of ownership (e.g. in Switzerland).


§ 7 Liability for Defects of Quality
(1) Defect claims shall only be permitted if notices of defects are declared immediately; notice of hidden defects of quality must be declared as soon as such defects are discovered. In the event of complaints, the Customer must immediately give HLT the opportunity to examine the goods. The goods which are the subject of complaint must be made available on request at HLT’s expense. In the event of unjustified complaints, HLT reserves the right to charge the Customer the freight and transshipment costs and the examination expense.
(2) In the event of the existence of a defect of quality, HLT may choose, with consideration to the Customer’s interests, to provide subsequent performance either through replacement, delivery or through repair. If subsequent performance is not successfully undertaken within a reasonable period, then the Customer may set a reasonable period for subsequent performance, at the end of which it may, if it has been unsuccessful, either reduce the purchase price or else withdraw from the Contract; unless indicated otherwise in sec. 8, no further claims shall be permitted.
(3) The period of limitation in the event of defective delivery shall end, except in the event of fraudulent concealment of a defect, at the end of one year following delivery. Repair or replacement delivery shall not cause the period of limitation to recommence.
(4) Recourse claims of the Customer according to Sec. 478 BGB against HLT shall be restricted to the statutory scope of the defect claims of third parties made against the Customer, and shall presuppose that the Customer has complied with its duty to serve a notice of defect on HLT in accordance with Section 377 HGB [German Commercial Code] and Art. 39 CISG.


§ 8 General Limitations of Liability
(1) Unless determined otherwise in this contract, HLT shall be liable for damages for breach of contractual or non-contractual obligations or during contract initiation only in the event of intent or gross negligence on the part of its legal representatives or agents for whom it is vicariously liable and in the event of culpable breach of fundamental contractual obligations. In the event of culpable breach of fundamental contractual obligations, HLT shall be liable, except in the event of intent or gross negligence by the legal representatives or agents for whom it is vicariously liable, only for predictable losses which are typical in relation to the contract.
(2) The foregoing limitations of liability do not apply in the case of injury of life, body and health of human beings.
3) Any claims according to the German Product Liability Law for personal injuries or damage to privately used objects shall remain unaffected.


§ 9 Choice of Law, Place of Jurisdiction
(1) This Contract is subject to the laws of the Federal Republic of Germany. The regulations of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of the INCOTERMS® in the respective applicable version shall apply, to the extent that they are not in conflict with the provisions of the present contract.

(2) Exclusive place of jurisdiction for all disputes arising out or in connection with this contract including as to its validity shall be Wehingen, Germany.


§ 10 Final Provisions, Interpretation
(1) Amendments, supplements or the cancellation of the contract shall only be valid provided they are set out in text form. This requirement may only be varied by agreement in text form.
(2) In case of any disputes, the German language version of these General terms and conditions shall solely govern.
(3) Should individual provisions of these General conditions of Sale be invalid, the validity of the remaining provisions shall not be affected thereby. In lieu of the invalid provision, or to fill a gap, a reasonable provision shall be agreed which in avoidance of the reason of the invalidity comes closest to the intentions of the Parties or to what the Parties would have intended according to the spirit and purpose of the Contract, had they considered the point. If the invalidity is based on any provision as to performance or time, it shall be replaced by what is legally permissible.

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