1. Sphere of Application

1.1 Principally these General Conditions of Export (hereinafter referred to as “GCE”) apply to all deliveries, services and offers of Notter GmbH, Germany (hereinafter referred to as “Seller”), provided that they have not been modified or excluded expressly and in writing. All deviating conditions are rejected and shall not form part of any contract, even if the Seller does not declare his rejection expressly and in writing.

2. Conclusion of the Contract, Prices, Packing and Packing Costs, Dispatchment, Transport Insurance

2.1 Any offers of the Seller are without obligation.
If the Seller has fixed a time for acceptance in its written and firm offer, the contract shall be deemed to be concluded, when the Buyer before expiration of such period has dispatched a written acceptance, as long as such acceptance reaches the Seller at least within 3 days after the fixed expiration date. The contractual content is defined by the technical specification of the Seller.

2.2 All prices are for delivery Ex Works of the Seller (Incoterms 2000), packing costs and German Value AddedTax excluded (refer to 2.3 and 3.1). Buyers from inside the European Union have to indicate their VAT-Ident.-No. at the formation of the contract.

2.3 Unless otherwise agreed packing shall be at the discretion of the Seller and shall be charged at selfcost. The Buyer is obliged to dispose of all packing materials.

2.4 The goods are dispatched on charge and at the risk of the Buyer. Transport insurance shall be provided by the Buyer.

2.5 Mounting and installation of the delivered appliances, tools and auxiliary equipment is the Buyer´s obligation. If the Seller in case of an additional express agreement is obliged for mounting or installation and/or to put the appliance into operation, his General Conditions of Mounting and Installation are applicable.

3. Delivery, Passing of Risk, Declaration

3.1 Unless otherwise agreed in writing, all deliveries will be effected exclusively Ex Works of the Seller in Germany (EXW Incoterms 2000 – refer to no. 2.2). Any agreed deviating trade terms shall be interpreted according to the Incoterms of the International Chamber of Commerce, Paris.

3.2 Partial deliveries are permitted.

4. Time for Delivery, Delay, Cancellation of the Contract

4.1 Any dates of delivery are without obligation and only binding if agreed expressly and in writing. The period of time for delivery begins to run with dispatchment of the sales confirmation, but neither prior to the production of all documents, licences, permits and further formalities which are required of the Buyer, nor before receipt of the agreed advance payments. The period of time for delivery extends accordingly, if the Buyer fails to accept any drawings or sample moulds within 5 working days after receipt from the Seller.

4.2 If the Seller is responsible for delay of delivery, the Buyer, after 3 weeks of delay – excluding other claims – is entitled to liquidated damages – if he substantiates that he has incurred damages – for each further full week of delay, payable at a rate of 0,5 % – but not exceeding 5 % in total – calculated on the value of that part of delivery which, as a consequence of the delay, cannot be used as intended. No. 7.5 applies accordingly.

4.3 If the maximum liquidated damages according to no. 4.2 are reached, the Buyer – after he has fixed an additional reasonable period combined with the announcement that acceptance of delivery will be refused – may notify the Seller in writing of the termination of the contract in respect of that part of the goods which are delayed, except where the Seller delivers prior to termination. No. 7.5 applies accordingly.

4.4 If the Buyer is in delay with an essential contractual obligation, the Seller is entitled to extend the period of time for delivery according to the period of delay. No. 5 applies analogously.

5. Acceptance of Delivery

The Buyer bears all costs of storage, insurance, protection measures etc., arising from any delayed acceptance. Without further proof the Buyer must pay per week of delay liquidated damages of at least 0,5 % of the order value, but not exceeding 5 %. The Seller may demand, by notice in writing, the Buyer to accept delivery within an additional period of time if the Buyer has not accepted delivery at the fixed time of delivery. Nevertheless, this does not affect the Seller’s claim to the purchase price. After expiration of the additional period the Seller is entitled to terminate the contract in whole or partly by notice in writing and claim damages.

6. Payment

6.1 Unless otherwise agreed, all payments must be effected by advance payment or by irrevocable and confirmed letter of credit (or bank guarantee, bond) at least 3 weeks prior to the date of delivery. The “Uniform Customs and Practices for Documentary Credits” of the International Chamber of Commerce, Paris, are applicable. All payments shall be effected in EURO without regard to any deviations of the currency exchange rate and without any reduction or discount “free pay office” of the Seller.

6.2 In case of late payment, the Seller is entitled to interest from the date on which payment was due. The rate of interest shall be 8 % p.a. above the prime bank rate of the European Central Bank. The Seller in so far may suspend performance of the contract. If the Buyer has not paid the agreed amount within a reasonable additional period not to exceed 1 month after the payment was due, the Seller shall be entitled to terminate the contract by notice in writing and claim compensation for any loss it has incurred.

6.3 (Creditworthiness, delay in payment) If any particular circumstances create considerable doubts regarding the Buyer’s creditworthiness, all claims resulting from the whole business relationship shall become due immediately. The Seller is entitled to demand delivery against advance payment. Sentence 1 applies accordingly regarding Seller’s delay in payment for any contract. If payment in instalments is agreed and the Buyer delays more than 10 % of the owed purchase price, the entire purchase price shall become due immediately.

6.4 The Seller is entitled to demand advance payment of two thirds of the purchase price regarding customer specific items or variations of those, payable 3 weeks prior to start of production at the latest.

7. Liability for Conformity of the Goods

7.1 (Duty of examination and notification)
After acceptance, the Buyer must examine the goods without delay. Therefore he must observe the recognized industry standards. In any case, the Buyer loses the right to rely on a lack of conformity of the goods if it does not give notice to the Seller, exactly specifying the nature of the lack of conformity, as soon as he has discovered it or ought to have discovered it. After arrangement with the Seller the Buyer is responsible for the securing of all proofs.

7.2 (Handling and storage)
The proof of careful treatment and adequate and dry storage of the goods devolves on the Buyer.

7.3 (Remedy of defects, substitutional delivery)
If the goods do not conform to the contract, the Seller may remedy the lack of conformity at first and at its own discretion within four weeks after the Buyer’s request and, even if the defects are substantial, by repair or substitutional delivery. Any repair must be effected at the place of business of the receiver agreed in the contract. If such receiver’s place differs from the Buyer’s place of business, this must be disclosed to the Seller. Otherwise the latter shall not bear any thus increased costs. The Buyer – on reasonable demand and according to the directions of the Seller – is obliged to participate in any repair works against reimbursement of his expenses.

7.4 (Pro rata reduction, termination of the contract)
If the Seller fails to remedy the lack of conformity according to no. 7.3 by repair or replacement, the Buyer is entitled to a reasonable pro rata reduction of the purchase price. If the lack of conformity is fundamental, the Buyer may fix a final period for fulfilment and after fruitless expiration of such final period demand termination of the contract.

7.5 (Exclusion of further claims for damages caused by defects)
Save as stipulated in nos. 4.2, 4.3 and 7.1 through 7.4, 9. and 10. the Seller shall – without regard to the legal reasons – not be liable for any lack of conformity and damages. This applies to any damages caused by the defect, including losses of production, profit or other indirect losses, what so ever, (losses and damages not incurred in the delivered goods themselves). In case of responsibility for a fundamental breach of contract the Seller is liable, also in case of gross negligence, but only for typical contractual losses which could have been reasonably foreseen. The Seller in any case is liable, however, for gross negligence, for particularly rendered guarantees, fraud, culpable caused damages to life, body or health or if there is liability regarding physical injuries or damages to private items under German or foreign product liability laws.