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GENERAL BUSINESS TERMS OF MOSCA GMBH

 

I.    General

1.   The following General Business Terms apply exclusively to entrepreneurs. Entrepreneurs, as defined by these conditions, are natural or legal persons or partnerships with whom business is transacted and who undertake a commercial or independent professional activity.

2.   Unless stipulated to the contrary in writing in the specific case, all signed contracts and deliveries of the MOSCA GMBH (hereinafter referred to as MOSCA) are carried out solely under the following General Business Terms from MOSCA. If the customer does not want his transactions to be subject to MOSCA's General Terms of Business, he must make an explicit statement to this effect in writing. Otherwise the General Business Terms of MOSCA shall apply, even if the customer has ordered or confirmed under different terms and/or his own terms do not recognize other General Terms of Business. The customer's General Terms of Business do not place any obligation on MOSCA. MOSCA herewith explicitly rejects the customer's General Terms of Business. These shall also have no validity, even if MOSCA does not explicitly reject them in the specific case.

3.   The contractual relationships are subject to the laws of the German Federal Republic. The conflict of laws (IPR) and the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

'Incoterms' laid down by the International Chamber of Commerce shall apply to defining delivery terms (FOB, CIF etc.). The General Terms of Business shall also apply to all future business with the customer.

II.   Offer and conclusion of contract

1.   The customer is bound by his order until the written order confirmation is received from MOSCA, though for a maximum of four weeks. The contract becomes legally binding with the receipt of the order confirmation from MOSCA. Only the written order confirmation, or if not available, correspondence signed by the customer and received from MOSCA, shall be legally binding.

2.   All agreements, verbal secondary agreements or changes to the contract shall only be valid, if they have been signed by MOSCA. The same shall apply to any guarantee of quality or longevity of the contract goods. If the customer wants any changes with respect to the offer, in particular, after manufacture of the samples etc., or production of the ordered goods has commenced, MOSCA reserves the right to re-cost the price originally quoted to take account of the additional or lower expenditure. The customer can be shown the relevant expenditure, on request, that is necessary because of the required changes. If production or manufacturing costs have already been incurred that can no longer be exploited for the technically modified product, the customer will have to indemnify MOSCA for such costs.

3.   MOSCA reserves the right to make design changes usual for the trade and sector, provided they are not fundamental in nature. The details, also in catalogues and brochures, about weights, dimensions, speeds and other values should be seen as approximate. MOSCA also reserves the right to make reasonable changes here that are customary in the trade and sector.

4.   All offers and subsequent offers for subsequent orders are subject to confirmation.

5.   MOSCA holds proprietary and copyright to all cost estimates, drawings and other documents. The documents submitted and presented when the order was signed, such as pictures, drawings, weights and measures, together with drawings are only approximate, unless otherwise explicitly described as binding by MOSCA. Insofar MOSCA reserves the right to make reasonable changes here that are customary in the trade and sector. No third parties may be granted access to documents from MOSCA without MOSCA’s prior consent. If the contract is subsequently cancelled, the work carried out on planning and drafts for the customer shall be invoiced in accordance with the standard arrangement for payments and fees for engineers. The customer shall return any drawings and other documents to MOSCA automatically, if the contract is cancelled or fails to go ahead.

III.  Withdrawal from the contract

1.   MOSCA has the right to withdraw from the contract, if:

a.   circumstances are known that provide grounds to assume that the customer will not properly meet his contractual obligations, jeopardising MOSCA's right to consideration (in particular suspension of payments, application for insolvency proceedings, cheque or note protests etc.) and the customer fails to make payment or supply surety after a reasonable period of grace;

b.   force majeure, war, intervention by government authorities, shortage of raw materials, natural disaster, relocation or closure of the business activities that would prevent the obligation to deliver, without MOSCA being at fault, not only temporarily but create a permanent obstacle to performance;

c.   the customer does not satisfy the conditions for reservation of title;

d.   non-contractual obligations (tolls and import duties, taxes or other premiums on the goods, fluctuations in currency) not borne by the customer do not simply render meeting the obligation to deliver significantly more difficult.

2.   In the event of a termination MOSCA may take, remove or demand the return of the contract goods. The customer shall bear any costs that arise as a result

3.   The customer has no right of withdrawal from the contract. If the customer should withdraw from the contract for reasons for which MOSCA is not responsible, without having a statutory right of withdrawal, he shall be liable to pay compensation.

IV.  Prices and payment conditions

1.   The list price valid on the day of the delivery or provision of services shall apply in each case. The prices are in euro ex works, excluding VAT and costs for packaging, unloading, assembly and installation on site. If the cost factors on which the agreed price is based changes after the contract is signed due to price increases for raw materials, auxiliary materials, energy or wage or salary increases as a result of collective agreements, MOSCA reserves the right to adjust the price, if the goods or services are only due to be provided four months following conclusion of the contract. The customer can ask for proof of the price increases, if necessary.

2.   Expenditure on goods upon import into the country of destination (import, tools or other premiums) are not included in the contract price and shall be borne by the customer.

3.   MOSCA shall also invoice for any services not explicitly quoted for at the time the contract was signed but which are necessary to fulfil the order or are carried out at the customer's request.

4.   30% of the purchase price for machines is payable without deduction when the order is placed, 60% when notification is received of readiness for dispatch and 10% at the latest 14 days after readiness for dispatch. Assembly, modifications and repairs as well as consumables shall be due for payment immediately upon provision of services or when the goods are delivered. Provided no other contractual agreements have been reached, payments shall become due immediately after the goods are delivered or the services are provided, irrespective of when the invoice is issued or raised. Default interest is 8 percentage points above the respective base rate. MOSCA is entitled to claim a higher sum, if it is able to prove a greater loss as a result of default.

5.   Any costs or expenses that arise due to bills of acceptance or customer bills shall be borne by the customer.

6.   In the event of delayed payments, payment arrears or default by the customer, MOSCA is entitled to suspend any preferential price terms, such as discounts and to withhold deliveries to the customer, even from other orders, until the arrears have been paid.

7.   If the customer fails to meet the due instalments, the entire amount that still remains due from the entire business relationship shall become due immediately. The customer may only offset any demands to MOSCA with undisputed and legally enforceable counterclaims. The customer may only claim rights to withhold payments on the basis of undisputed or legally enforceable counterclaims.

8.   MOSCA is entitled to make and to invoice reasonable partial deliveries that should then be paid upon submission of the invoice. This provision shall not affect the customer's statutory right to withdraw from the contract.

V.   Delivery

1.   MOSCA shall adhere to the agreed delivery times as far as possible. MOSCA accepts no liability for delays, failure to deliver that are the result of force majeure, strike, lock-out etc., or for damage in transit. Liability is also ruled out, in particular, if the delivery is delayed or fails to take place due to the fault of the customer or his agents.

2.   MOSCA accepts no liability, if the agreed delivery time is not met because a subsupplier has not delivered the contract goods or parts required thereto promptly.

3.   Quoted dates should not be considered as fixed dates. Fixed dates are those that are designated explicitly as fixed dates in the contract.

4.   Correct and prompt self-delivery remains reserved.

5.   If it is not possible to dispatch the goods, for reasons for which MOSCA is not responsible, notification that the goods are ready for dispatch shall suffice as fulfillment of contract.

6.   In the case of industrial action, in particular, strike or lock-out and the occurrence of unforeseeable circumstances, for which MOSCA is not responsible, and operational disruptions, such as interruption to the energy supply, shortage of raw materials, intervention by the authorities, natural disasters or force majeure, the delivery date shall be reasonably extended, provided such hindrances can be proven to have significantly influenced the completion or delivery of the contract goods. This shall also apply, if these hindrances occur during a default of delivery and result in delays on the part of MOSCA's suppliers. MOSCA shall notify the customer immediately of the start and end of such hindrances.

7.   MOSCA shall only be in default, if the customer has set MOSCA a period of grace of at least 21 working days after the end of the contractually agreed delivery time and this has lapsed for reasons for which MOSCA is responsible. This shall not affect the customer's statutory rights to withdraw from the contract.

VI.  Acceptance and dispatch

1.   If dispatch is delayed for reasons for which MOSCA is not responsible, risk shall pass to the customer on the day readiness for dispatch is notified. If the customer is at fault, the goods shall be stored at the customer's expense and risk.

2.   Goods are dispatched at the customer's expense and risk. All risks shall pass to the customer upon dispatch or collection of the goods regardless of the type of delivery agreed in the specific case.

3.   MOSCA shall decide the transport route and type of transport for any delivery that is not carried out ex works. The decision is made at MOSCA's discretion and excludes any liability for the most favourable type of dispatch.

4.   MOSCA shall not accept back any packaging materials that have been invoiced.

5.   If the customer fails to take delivery of the goods within 14 days of notification of their readiness for dispatch, MOSCA is entitled to withdraw the contract price immediately after giving 14 days' notice. Any rework that is required as a result of storage at MOSCA (e.g. corrosion damage) shall be borne by the customer who will be invoiced separately for such damage.

6.   If an order fails to go ahead for reasons for which the customer is responsible, the customer shall be liable for 40% of the contract price as compensation for the loss of profit and costs incurred, provided the planning for these contract goods has already been completed. The customer may provide proof that the damage that arose or the reduction in value that occurred was significantly lower than the fixed rate. This shall not affect a claim for compensation beyond the compensation flat rate. The customer must always pay the agreed contract price, if the goods are already in production.

7.   In the event of compulsory certification, the customer is entitled to inspect the goods and undertake the corresponding certification measures in accordance with the standards and conditions valid for the relevant third country at the contractually agreed place of acceptance within 10 working days of notification of the contract goods' readiness for dispatch. The customer shall tacitly waive the right of inspection, if he or his agents fail to carry out the inspection within the nominated period. In this case, the goods shall be deemed to be properly delivered and accepted with the expiry of the deadline.

VII. Liability for defects

1.   Any claims for defects made by the customer depend upon his having properly satisfied his duties of inspection and complaint in the specific case in accordance with Art. 377 of the German Civil Code. Identifiable defects must be notified immediately in writing, though at the latest within a period of ten working days from receipt of the goods. Hidden defects must be notified in writing within ten working days of the defect being identified. This obligation to notify a defect also applies to the customer, even if there is no duty of inspection and complaint in accordance with Art. 377 of the German Civil Code (HGB) for obvious defects, with the proviso that obvious defects are notified in writing within 10 working days of receiving the goods at the latest.

2.   The customer's duty of inspection extends to the entire shipment. Notwithstanding any possible defects, the goods should be accepted and properly stored. Rejected goods must not be modified or used. MOSCA must be given the opportunity to inspect the rejected goods.

3.   MOSCA is initially free to choose whether to guarantee to rectify the defect or to supply goods free from defects (replacement delivery). If MOSCA is unwilling or unable to rectify the defect or provide a replacement, in particular, fails to do so within a reasonable period of time, or if the rectified defect/replacement delivery should fail, the customer is entitled to chose whether to withdraw from the contract or to demand a reduction and compensation within the scope of the liability restrictions set out in point VIII.

4.   If the customer receives defective assembly instructions, MOSCA shall only be obliged to provide assembly instructions free from errors and only then, if the defect in the assembly instructions prevents proper assembly.

5.   The customer shall not receive any guarantees in the legal sense from MOSCA. This shall not affect the manufacturer's guarantees.

6.   For purely hire of labour, MOSCA shall only be liable for proper and professional work and execution in accordance with the customer's drawings and using materials provided by the customer. MOSCA is not obliged to check the documents and materials provided by the party placing the order.

7.   MOSCA accepts no liability for defects that occur as a result of natural wear and tear, incorrect commissioning, operation and servicing and by using unsuitable equipment. MOSCA accepts no liability for defects that occur as a result of excessive load or from the effects of building, weather other environmental influences after the transfer of risk, for which MOSCA is not responsible. MOSCA accepts no liability for the proper planning and compatibility of the contract goods within an overall system not supplied by MOSCA. MOSCA accepts no liability, if the contract goods have been modified by an external party or by installing parts of third-party origin and the defects occur as a result of the change.

8.   MOSCA is only obliged to supplementary performance or to rectify the defects in the purchased goods, if the customer has met his payment obligations with respect to the defective goods already supplied.

9.   If MOSCA is obliged to accept return of the rejected or defective goods or MOSCA declares that it is willing to accept return of the goods, the customer is obliged to give MOSCA a reasonable period of notice for collection. The customer will only be entitled to send back the goods after this period has expired. The customer shall bear any costs for returning the goods, should they be returned before the end of this notice period.

10. Should it emerge at a later date that MOSCA has incurred costs or expenditure as a result of supplementary performance or guarantee despite there being no defect or the aforesaid conditions rule out such guarantee, the customer shall be obliged to pay MOSCA for the costs and expenditure so incurred.

11. The period for bringing claims for defects is limited to twelve months, which is calculated from the transfer of risk, provided no other claims are made on the basis of a guarantee, product liability legislation or on injury to life, limb or health, or as a result of gross negligence or a deliberate breach of obligation or the fraudulent concealment of defects. This shall not apply, if the law pursuant to Articles 438 section 1 no. 2, 634 a section 1 no. of the German Civil Code and Articles 478, 479 of German Civil Code provide for longer limitation periods. This shall also not affect the limitation period in the case of suppliers' responsibility pursuant to Articles 478, 479 of the German Civil Code, which is 5 years calculated from the delivery of the defective goods. This does not affect the suspension of the period of limitation, suspension and restarting the periods of limitation in accordances with statutory regulations.

12. Data protection claims are not covered by this liability regulation.

VIII. Joint and several liability

1.   Unless mentioned to the contrary below, no liability beyond that provided for in VIII. for damages shall be accepted, regardless of its legal basis.

This applies, in particular, to claims for compensation based on fault when concluding the contract due to other violation of duty or due to tortious claims for damages to property pursuant to Art. 823 of the German Civil Code. The limitation in accordance with the aforesaid conditions shall also apply, if the customer demands reimbursement of the needless expenditure instead of rectification of the defect or replacement part.

2.   This exemption from liability does not apply to customer claims as a result of accepting a guarantee for the quality of the contract goods; for liability for damages as a result of an injury to life, limb or health and or liability in accordance with product liability legislation; in addition, if the damage was intentional or the result of gross negligence or fraudulently concealed by MOSCA.

3.   MOSCA continues to be liable, if MOSCA culpably fails to meet an essential contractual obligation, the fulfilment of which is required for the due execution of the contract and on whose compliance the contractual partners regularly rely. In this case, however, liability for compensation is limited to the typically foreseeable damages.

4.   If MOSCA culpably breaches an insignificant contractual obligation, MOSCA shall not be liable for any damages that do not occur in the contractual goods themselves. Insofar the liability for any loss of profit or other pecuniary losses suffered by the customer shall be excluded. This does not apply, however, if MOSCA has accepted a guarantee of quality or longevity and this guarantee includes liability for loss of profit and other pecuniary losses.

5.   Insofar as liability by MOSCA is excluded or restricted, this shall also apply to personal liability of employees, employers, staff, representatives and agents of MOSCA.

IX.  Reservation of title

1.   MOSCA reserves the title to the contract goods until all payments under the business relationship with the customer have been settled. In the case of ongoing payments, this also applies explicitly to the payment from the relevant surplus. Cheques and bills of exchange are lodged solely on account of performance and shall only be considered as receipt of payment in this sense after final satisfaction without a danger of recourse. If MOSCA agrees to payments of the debt on the basis of a cheque/bill of exchange, the reservation of title shall also extend to redemption of the bill of exchange accepted by MOSCA from the customer and is not extinguished when the cheque received by MOSCA is credited.

2.   The customer is only entitled to sell on the contract goods, to collect the assigned proceeds from the sale, to use and/or process the contract goods and/or introduce the contract goods to a site or object as part of the normal course of business and in accordance with the following conditions.

3.   The customer hereby relinquishes all claims from the resale of the contract goods to the invoice value of the contract goods (including VAT) to MOSCA, and regardless of whether the contract goods supplied have been resold without or after they have been processed. MOSCA accepts the assignment. The customer is not permitted to dispose of the contract goods in any other way, in particular, not to mortgage or to pledge them as surety. If such subrogation to MOSCA is not possible for legal or actual reasons, the customer shall not be entitled to resell them.

If the contract goods are installed in another object as part of a contract for works, the customer shall relinquish all claims up to the invoiced value of the contract goods (including VAT) from the contract of works to MOSCA. The customer continues to have authority to collect the debt even after the assignment. This does to not affect MOSCA's authority to collect the debt itself. However, MOSCA will not collect payment itself, as long as the customer meets his payment obligations, is not in arrears and, in particular, if no application for insolvency has been filed and/or the authorisation to collect the assigned claims by the customer as per no. 9 has not automatically expired, or MOSCA rejects the direct debit mandate for some other reason.

If this is the case, however, MOSCA may demand that the customer disclose the assigned claims and their debtor to MOSCA, provide all the necessary details for collection, hand over the related documents and reveal the assignment to the debtors (third party).

4.   If the customer processes the contract goods into a new movable object, processing will be carried out on behalf of MOSCA, without any obligation to MOSCA. The new object shall be the property of MOSCA. If the contract goods are processed together with objects that do not belong to MOSCA, MOSCA shall acquire co-ownership of the new object in the proportion of the invoice value of the contract goods (including VAT) to the processed goods at the time of processing. If the contract goods are inseparably combined together with movable objects that do not belong to MOSCA, MOSCA shall acquire co-ownership of the new object in the proportion of the invoice value of the contract goods (including VAT) to the other mixed objects at the time of mixing. If the customer acquires sole ownership on the basis of joining, mixing or commingling, he herewith confers to MOSCA co-ownership in proportion to the invoiced amount of the contract goods (including VAT) to the other goods at the time of joining, mixing or commingling. In these cases, the customer must store the goods in ownership or co-ownership with MOSCA that are also deemed as contract goods, as defined by the following conditions, free of charge.

5.   If the customer disposes of the contract goods, on their own or in conjunction with goods not belonging to MOSCA, the customer herewith assigns all claims arising from the resale up to the invoice value of the contract goods (including VAT) with all subsidiary rights as a priority to MOSCA; MOSCA accepts the assignment. If the resold contract goods are co-owned by MOSCA, the assignment of the claims shall extend to the amount that corresponds to the unit amount of co-ownership held by MOSCA. If the customer installs the contract goods into an object of a third party, the customer herewith assigns the pending, transferable claims to payments to the value of the invoice for the contract goods (including VAT) against the third party, or against the party concerned, and of such third party to grant a chattel mortgage as a priority to MOSCA. MOSCA accepts the assignment.

6.   If the customer's contract goods are installed as an essential element into the property of a third party, the customer herewith assigns the assignable claims for payment that have arisen to the value of the contract goods with all the subsidiary rights, including that to grant a chattel mortgage as a priority to MOSCA; MOSCA accepts the assignment. If the goods are installed in property held by the customer, the customer herewith assigns the claims arising from the disposal of the property or property rights to the value of the contract goods together with all subsidiary rights as a priory to MOSCA; MOSCA accepts the assignment.

7.   Equally, he assigns claims to the value of the invoice amount of the contract goods (including VAT) to which he is entitled from a third party as a result of the destruction, damage, theft or loss of the contract goods.

8.   The customer must notify MOSCA immediately of any action by third parties to force a sale of the contract goods or the assigned claims and hand over the necessary documents to defend such action. If the third party is not in a position to reimburse MOSCA for the court and extra-judicial costs of an appeal, the customer shall be liable for the loss incurred.

9.   The authority to collect the assigned claims and the right of resale and to collect the assigned proceeds from sale, to use or to install the contract goods oneself shall lapse with the cessation of payments, application or opening of insolvency proceedings, when a cheque or bill of exchange protest is lodged, without MOSCA having explicitly to revoke the right to install or use the goods.

10. Mosca is obliged to release the securities to which it is entitled at the customer's request, when the realisable value of the securities exceeds the claims to be secured by more than 10%. It is incumbent upon MOSCA to select the security to be released.

X.   Court of jurisdiction and place of performance

1.   74821 Mosbach/Germany is the court of jurisdiction for all disputes arising from the contractual relationship and other business relationships between the customer and MOSCA, provided the customer is a businessman, a legal entity under public law or a federal special fund under public law. MOSCA is also entitled to file a suit at the customer's place of residence or registered business address.

2.   Unless stipulated to the contrary in the order confirmation, place of performance for all obligations arising from the business relationship is 69429 Waldbrunn/Germany.

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