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Terms and Conditions of Sale

Terms and Conditions of Sale, Delivery and Payment

As at January 2014

1. Conclusion of contract, scope of delivery

Our offers are subject to change in all cases. The orders placed with us and our representatives are not considered to be accepted by us before we have confirmed the acceptance in writing. Our order confirmations are considered to be acknowledged in their entirety if anything to the contrary is not declared to us within one week after their receipt or if the merchandise delivered by us is accepted. Any terms and conditions pre-printed on purchase orders of the buyer are only considered to be acknowledged if they are expressly confirmed by us in writing. If prices are quoted per unit, they are based upon the theoretically determined weight. That price per unit shall be regarded as a guiding price and may vary upwards or downwards depending on the result of the actual weight. The scope of delivery complies with our written confirmation. Any reference to DIN-standards is a description of the work and not a guarantee of qualities.

2. Price setting

Our prices quoted are ex works plus packaging and value added tax in the amount applicable in each case at the time of delivery. All public charges newly introduced by German Federal Law or German Federal State Law subsequent to the order confirmation, as well as any increases in railway and postal tariffs, in energy and fuel costs, wages, salaries and other prime costs, particularly in crude metal prices, making the merchandise more expensive, directly or indirectly, somehow or other, result in an adjustment of the price. Thus, we will invoice then the prices effective on the day of delivery, unless a fixed price has been expressly confirmed by us.

3. Time of delivery

The periods of delivery start upon our order confirmation, however, not before all details of the execution have been clarified and all other requirements to be met by the customer have been complied with; the same applies to the dates of delivery. Deliveries before the expiry of the time of delivery and partial deliveries are permissible. The day of notification of readiness for dispatch is considered to be the day of delivery, alternatively the day of dispatch. – We will only come into default by means of a reminder even if fixed dates of delivery were agreed upon. If we are prevented from delivering in due time as a result of disruptions in the normal course of operations, in our company or our subcontractors‘ enterprises, having a proven, serious impact on the supplier, or as a result of labour disputes, the period of delivery extends adequately. If a delivery becomes impossible due to this, our obligation for delivery ceases to exist, excluding any compensation for damages. If the customer provides evidence that any subsequent performance is of no interest to him as a consequence of the delay, he may withdraw from the contract, excluding any further claims. If we come into default, the customer is entitled to set a reasonable period of grace and to withdraw from the contract after its unsuccessful expiry.

4. Delivery contracts on call

With regard to call orders without any agreements as to duration, production lot sizes and call-off dates, we can request binding pertinent specifications at the latest three months after our order confirmation. If the customer does not comply with that demand within three weeks, we are entitled to set a two- week period of grace and to withdraw from the contract after its expiry or to decline the delivery and claim compensation for damages. If the contract quantities are exceeded by the individual call-off orders placed by the customer, we are entitled to either cancel the excess quantity or to invoice it at each of our prices effective on the day of dispatch. We are not committed to indicate any exceeding of the contract quantity. Only the terms and conditions laid down in our order confirmation shall apply to deliveries of contract quantities. Any provisions differing from them, submitted when placing a call-off order, are invalid, unless they are reconfirmed by us in writing.

5. Testing procedures, technical approval

If the customer wants necessary tests to be carried out by us, he shall communicate the manner and extent of the tests to us at the latest when placing his purchase order. If this is not done, we are not committed to accept the order for those tests. The costs for necessary tests are to be borne by the customer. If a technical approval according to particular conditions has been agreed upon, the customer shall carry this out in our factory at his own expense immediately after the notification of readiness for approval. If no approval procedure takes place in spite of setting a reasonable period of grace, we are entitled to dispatch the goods or to put them in storage at the customer’s expense and risk; the merchandise is thereby considered to have been approved.

6. Packaging

Where required at our discretion, we provide for customary packing of the goods at the customer’s expense. The packaging is invoiced at cost price and will be refunded in the amount of 2/3 of the invoiced price if it is returned, exempt from charges, in good condition within 14 days; disposable packaging will not be taken back.

7. Dispatch and passing of risk

The risk passes to the customer when the goods leave our factory. Therefore, the dispatch is always effected at the customer’s risk. If the dispatch is delayed for reasons for which we cannot be held liable, the risk passes to the customer upon notification of readiness for shipment of the goods. Any delivery agreed upon to be free of freight charges only relates to the sending of freights, not to mails or express deliveries.

8. Measures, weights and delivery quantities

The DIN-standards apply to the observance of measures. This also applies to required alloys. Apart from that we specify the measures and weights in our quotations and order confirmations to the best of our knowledge: However, they only apply approximately. Any excess weights or short weights due to technical reasons of casting, do not entitle the customer to any complaints. In case of serial production, excess deliveries or short deliveries of up to 10 % as compared to the order quantitiy are permissible.

9. Defects, delivery of noncontractual merchandise

We warrant the correct manufacturing of the parts delivered by us pursuant to the technical delivery instructions agreed upon. The time of passing of risk is decisive for the contractual condition of the goods. The customer shall give written notice of defects immediately after receipt of the goods at the destination, of latent defects immediately after discovery of the defect, however, at the latest within six months after the passing of risk. If technical approval in accordance with paragraph 5 has been agreed upon, the complaint of such defects is excluded which could have been ascertained during the approval according to the manner agreed upon. We shall be given the opportunity to verify the complained defect on the premises. Such verification shall have to be effected by us immediately if the customer declares his interest in a prompt execution. No modification must be made to the rejected goods without our consent, voiding any warranty claim. In case of a justified claim for defects asserted in due time, we may at our own option, remove the defect free of charge or either deliver parts for replacement free of charge or credit the invoice value against return of the goods and the processing waste. As far as complex castings and large-sized cast parts are concerned, we must reserve to right that those parts cannot be finally rejected, but that we remove any technical failures by appropriate welding, should any imperfections occur. Disassembly and assembly costs as well as costs for any processing of defective goods by the customer shall not be reimbursed by us. If we incorrectly repudiate the removal of defects and/or a replacement delivery, or if we come in default with such, the customer at his own option, may set a reasonable period of grace to us and, after its unsuccessful expiry, may demand rescission of sale or reduction of price. Any further claims by the customer, particularly claims for the compensation of consequential damages caused by a defect, shall be excluded, unless our legal representatives, our management or our executives are charged with intention or gross negligence in consideration of the defect. The same limitations shall also apply with regard to our liability for the absence of guaranteed qualities. We shall only be liable for any compensation of damages to the extent that the purpose of the guarantee was to protect the customer against the occurred damage. If any type samples are sent to the customer for proving, we are only liable for the delivery to be carried out in accordance with that type sample, taking into account possible corrections. Any warranty claims can no longer be raised six months after the delivery.

10. Product liability

Exemptions from liability according to these General Terms and Conditions shall not apply to the claims resulting from the Product Liability Act.

11. Terms of payment

Payment of our invoices shall be effected net cash within 30 days from the date of invoice without deduction. Cash discounts are not permitted even in case of immediate payment. Default in payment occurs without any reminder after exceeding of the time limit for payment granted, pursuant to the article 286 of the German Civil Code (Bürgerliches Gesetzbuch/BGB) .The costs for workpiece-related models and production facilities shall always be paid in advance, unless otherwise agreed upon. The customer is not entitled to retain or to off-set any payment due to counterclaims, including warranty claims, unless those counter- claims are undisputed or have been established as final and absolute. If the customer comes into default in payment, interest for default shall be paid from that day forth according to the provisions of the article 288 of the German Civil Code. If the terms of payment are not abided by or if facts become known that create reasonable doubt as to the customer’s credit-worthiness, all our receivables become due immediately – irrespective of any valuta that might have been taken in. The same applies to costs incurred, to services rendered and to work in process as well as to goods finished but not yet delivered. In those cases we shall be entitled to make deliveries only against advance payments or cash on delivery or a provision of security or to withdraw from the contract after a reasonable period of grace or to claim compensation for damages due to non-compliance . Furthermore, we may forbid the resale and processing of the delivered merchandise and request its return or the assignment of constructive possession of the delivered merchandise at the customer’s expense due to the retention of title agreed upon in paragraph 12 and revoke the authorization for collection according to paragraph 12. The customer already now authorizes us to enter his plant in the aforementioned cases and to pick up the delivered merchandise as a provision of security. The return of the goods shall only imply a withdrawal from the contract if we expressly declare this.

12. Retention of title

We retain title to the delivered goods until all our claims against the customer, which we are entitled to as a result of the business connection, are satisfied. This applies even if the price for specific deliveries, designated by the customer, has been paid. Any treatment and processing is effected for us without committing us and without our ownership being perished thereby. If the customer combines our goods subject to retention of title with other goods, we are entitled to co-ownership in the new item, in proportion to the invoice value of all combined goods. Insofar, the new item is considered to be an item subject to retention of title as defined by these stipulations. The customer shall only be entitled to sell the goods subject to retention of title within the normal course of business. He shall be barred from making any other disposals, in particular he may not assign as collateral or pledge the goods subject to retention of title. The customer shall assign to us in advance all claims accruing to him as a result of the use of the goods subject to retention of title. If the goods subject to retention of title are sold with other objects, not belonging to us, or if they are used as material when carrying out contracts for work and services aimed at a prespecified result, the assignment only comprises the share in the proceeds corresponding to our co-ownership . The customer is only authorized to collect the assigned claims within the normal course of business and only as long as he is not in default. The customer shall notify us immediately of any seizures by third parties of the goods subject to retention of title or of the assigned claims. The customer shall bear the costs for any interventions. The customer’s entitlement to dispose of the goods subject to retention of title and to collect the assigned claims expires if the terms of payment are not abided by as well as in the event of bill protests and cheque protests. In those cases, the customer shall advise his buyers of the assignment of the claims to us, at our request and shall report to us as well as provide the information and records to us that are required for the collection . If the value of the securities given to us exceeds our receivables by a total of more than 10 %, we shall be committed to release the aforementioned securities insofar – at our own option – on demand of the customer.

13. Workpiece-related models and production facilities

If the customer makes models or production facilities available, they shall be sent to us free of charge. We may at any time demand that the customer fetches back such facilties; if he fails to comply with such a request within three months, we shall be entitled to return them to him at his expense. The customer is liable for the proper technical construction and the type of facilities guaranteeing the production purpose, however, we are entitled to modifications due to technical reasons of casting. Without a particular agreement, we are not committed to verify the conformity of the facilities made available with any attached drawings or specimen. The customer shall bear the costs for the maintenance, modification and replacement of his facilities. If workpiece-related models or production facilities are manufactured or procured by us on behalf of the customer, we invoice the costs for this. In case the full costs are not charged, the customer shall also bear the residual costs, if he does not purchase the number of units promised by him when concluding the contract. Models and production facilities that are manufactured or procured by us on behalf of the customer, remain our property even if proportional costs are charged. They are kept by us for a three year period after the last casting. All models and production facilities are treated by us with that care that we use to exercise in respect of our own matters. We are not committed to procure insurance. In case the customer requires insurance coverage, he shall contract the appropriate insurances himself. We are entitled to a right of retention in the workpiece-related models and production facilities made available by the customer until all the customer’s liabilities still outstanding are settled, without enabling the customer to assert the plea pursuant to the article 369 par. 3 of the German Commercial Code (Handelsgesetzbuch/HGB). If deliveries are made on the basis of drawings or other specifications provided by the customer and if any third party’s proprietary rights are injured thereby, the customer shall indemnify us from all claims. Our drawings and documents delivered to the customer as well as our recommendations for the advantageous designing and manufacturing of the cast pieces may not be forwarded to any third party and may be claimed back by us at any time. The customer can only assert claims resulting from the copyright law and industrial property protection towards us with reference to models and production facilities sent or manufactured or procured on his behalf if he has advised us that such rights are in effect. In the event that scrap arises when using a production facility which may be used only once, the customer shall either make a production facility available again or shall bear the costs for a replacement facility.

14. Parts to be cast

Parts determined to be cast shall be supplied exempt from charges; they must be true to size and ready for casting. Necessary costs of processing shall be borne by the customer. The customer shall supply free of charge any replacement for parts becoming unusable due to scrap. The number of parts to be cast must appropriately exceed the number of cast pieces ordered.

15. Liability and compensation for damages

The customer is responsible, particularly with regard to the intended use, for the correct construction observing possible safety regulations, the selection of material and the necessary testing procedures, the correctness and completeness of the technical delivery instructions and the technical documents and drawings delivered to us as well as for the type of production facilities made available, and that also if modifications are proposed by us which he has approved. In case a claim for compensation of damages is raised against us by a third party and the cause of such claim is within the customer’s scope of responsibility, the customer shall indemnify us from those claims, including the costs of possible legal action. Our position is exclusively based upon the agreements reached under the aforementioned paragraphs. In all cases, in which we are under an obligation to compensate for damages due to a contractual or statutory basis for a claim, we are only liable if our legal representatives, our management or our executives can be charged with intention or gross negligence. All contractual or statutory claims that are not stated explicitly shall be excluded unless our legal representatives, our management or our executives can be charged with intention or gross negligence. This applies independently of the legal foundation of the claims, i.e. in particular also to claims resulting from positive violation of contractual duty, culpa in contrahendo or culpa post contractum finitum, default, impossibility of performance and tort.

16. Place of performance and place of jurisdiction, governing law

Andernach is the place of performance for payment; the place of Andernach main plant is the place of performance for all other commitments. - Andernach Local Court (Amtsgericht) or Koblenz District Court (Landgericht) are competent for all legal disputes. This also applies to possible litigation resulting from bills of exchange payable and cheques payable. All legal relations between the customer and ourselves are exclusively governed by the law of the Federal Republic of Germany. The application of the laws governing the international acquisition of movable property and governing the conclusion of international sales contracts for movable property is excluded explicitly.

17. Voidness of individual provisions

If individual provisions of these terms and conditions of delivery and payment are entirely or partly ineffective or null and void, the validity of the other provisions shall remain unaffected thereby. The contracting parties undertake to agree to an arrangement by which the spirit and purpose aimed at by the ineffective or void provision is achieved best.

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