General Terms and Conditions of HIRI

Last amended: June 2004

General Terms and Conditions of HIRI

Last amended: June 2004



I. Validity/offers

1. These General Terms and Conditions of Sale shall apply to all – including future – contracts and other services. We shall not be bound by any terms and conditions of the buyer even if we do not expressly object to them again after we receive them.

2. Our offers are subject to change without notice. Any agreements, especially oral collateral agreements, promises, guarantees and other assurances given by our sales staff shall be binding only once they have been confirmed by us in writing.

3. Any supporting papers belonging to our offers such as drawings, pictures, technical details, reference to standards as well as statements in advertising materials are not statements about quality, assurances about characteristics or guarantees in so far as they are not specifically characterised as such in writing.

4. deviations of the delivery item from offers, samples, trial and preliminary deliveries are permissible in accordance with the respectively valid DIN/EN standards or other relevant technical standards.

II. Prices

1. Unless otherwise agreed, our prices are ex works, excluding packaging, plus VAT in each case.

2. If the goods are delivered packaged, we shall charge for the packaging at cost price; within the framework of the statutory regulations, we shall take back packaging delivered by us if it is returned to us carriage paid by the buyer within a reasonable period of time.

III. Payment and settlement

1. Our invoices are due within 10 days with 2% discount, within 30 days net, in each case from the date of invoice. Payment must be undertaken within these periods such that we have received the amount required to settle the invoice by the due date at the latest. The buyer will be in default of payment at the latest 10 days after payment has become due regardless of whether we have sent a reminder.

2. Invoices for amounts under EUR 50.00 as well as for assemblies, repairs, moulds and tool costs are due immediately without deductions.

3. Counterclaims that we are contesting or which have not yet been determined to be legally binding do not give the buyer the right to withhold or offset payments.

4. If the payment deadline is exceeded, at the latest from default, we are entitled to charge interest at the respective bank rates for overdrafts, but at least at 8 percentage points above the base rate. We reserve the right to claim further damages.

5. If it becomes apparent after the conclusion of contract that our payment claim is threatened by the buyer's inability to pay, we shall be entitled to the rights as per § 321 BGB (German Civil Code – Defence of insecurity). We shall then also be entitled to declare due all claims not subject to the statute of limitations from the current business relationship with the buyer and to revoke the collection authorisation in accordance with Clause V/5. In the event of default in payment, we shall also be entitled to demand the return of the goods after the expiry of a reasonable grace period and to prohibit the resale and further processing of delivered goods. Taking back goods in this way shall not constitute withdrawal from the contract. The buyer can avoid all of these legal consequences by payment or giving security in the amount of our endangered receivables. The regulations of the German Insolvency Code ((InsO) shall remain unaffected by the above provisions.

6. Any cash discount agreed to always applies to the value of the invoice excluding freight and has the prerequisite that all amounts due by the buyer have been paid at the time of the discount.

IV. Delivery times

1. Delivery periods and dates shall be deemed to have been met if the delivery item has left our premises by the time they expire.

2. Delivery periods shall be extended to a reasonable extent in the event of initiatives within the scope of industrial disputes, in particular strikes and lockouts, as well as in the event of the occurrence of unforeseeable hindrances which are beyond our control, insofar as such hindrances demonstrably have a considerable influence on the manufacture or delivery of the delivery item. The same shall apply if such circumstances occur with our upstream supplier. We shall immediately inform the buyer of such circumstances. These regulations apply accordingly to delivery dates. If the performance of this contract becomes unreasonable for one of the parties, that party may withdraw from the contract to that extent.

V. Retention of title

1. All goods delivered shall remain our property (reserved goods) until all claims arising from the business relationship have been fulfilled, irrespective of the legal grounds, including claims arising in the future or conditional claims.

2. Treatment and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB without obligating us. The processed goods shall be deemed to be goods subject to retention of title within the meaning of Clause V/1. In the event of processing, combination and mixing of the goods subject to retention of title with other goods by the buyer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the otherwise utilised goods. If our ownership expires due to combination or mixing, the buyer shall already now transfer to us the ownership rights to which they are entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safe custody for us free of charge. The co-ownership rights arising hereunder shall be deemed to be goods subject to retention of title within the meaning of Clause V/1.

3. The buyer may only sell the goods subject to retention of title in the ordinary course of business at their normal terms and conditions of business and as long as they are not in default, provided that the claims from the resale are transferred to us in accordance with Clauses V/4 to V/6. They are not entitled to otherwise dispose of the goods subject to retention of title.

4. The buyer hereby relinquishes to us their right to the resale of goods subject to retention of title. These shall act as security to the same extent as the goods subject to retention of title. If the reserved goods are sold by the buyer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the goods subject to title that are sold in each case. In the event of the sale of goods in which we have co-ownership shares in accordance with Clause V/2, the assignment of the claim shall apply in the amount of these co-ownership shares.

5. The buyer is entitled to collect claims from the resale until our revocation, which is permissible at any time. We shall only make use of the right of revocation in the cases specified in Clause III/4. At our request, the buyer is required to inform his customers immediately about the assignment to us – as far as we do not do it ourselves – and to provide us with the necessary information and details to accomplish collection.

6. The buyer must inform us immediately about any seizure or other adverse actions on the part of third parties.

7. Should the value of the existing securities exceed the value of the secured claims by more than 50 %, we are required to release securities of our choice upon demand of the buyer.

VI. Execution of deliveries

1. Upon handover of the goods to a forwarding agent or carrier, but no later than upon leaving the warehouse or – in the case of drop shipments – the supplying plant, the risk shall pass to the buyer for all transactions, including carriage paid and free domicile deliveries. The duty and costs of unloading shall be borne by the buyer. We shall obtain insurance only at the instruction of and at the cost of the buyer.

2. We are permitted to make partial deliveries in reasonable amounts. In the case of manufactured goods, excess and short deliveries of up to 10% of the contracted quantity are permissible.

3. In the case of call-off orders, we shall be entitled to manufacture or have manufactured the entire order quantity in one go. Any change requests cannot be taken into account after the order has been placed, unless this has been expressly agreed. Unless fixed agreements have been made, call-off dates and quantities can only be adhered to within the scope of our delivery or manufacturing capacities. If the goods are not called off in accordance with the contract, we shall be entitled to invoice them as delivered after a reasonable period of grace has elapsed.

VII. Liability for defects

1. In the event of a justified, immediate notification of defects, we can choose to either eliminate the defect or deliver an item free of defects (subsequent performance). In the event of failure or refusal of subsequent performance, the buyer may reduce the purchase price or withdraw from the contract after the setting and unsuccessful expiry of a reasonable deadline. If the defect is not significant, the buyer only has the right to reduce the price.

2. We shall only assume expenses in connection with subsequent performance insofar as they are reasonable in the individual case, in particular in relation to the purchase price of the goods. We shall not bear any expenses incurred by the fact that the goods sold have been taken to a place other than the buyer's registered office or branch unless this would be in accordance with their contractual use.

3. Insofar as the buyer does not give us the opportunity to convince ourselves of the defect, in particular if they do not make the rejected goods or samples thereof available upon request, they cannot claim that the goods are defective.

4. Further claims are excluded in accordance with Clause VIII. This applies in particular to claims for damages which did not occur to the goods themselves (consequential damages).

VIII. General limitation of liability and statute of limitations

1. We shall only be liable for breach of contractual and non-contractual obligations, in particular for impossibility, delay, culpa in contrahendo and tort – including for our executive employees and other vicarious agents – in cases of intent and gross negligence, limited to the typical contractual damage foreseeable at the time the contract was concluded.

2. These limitations shall not apply in the event of culpable breach of material contractual obligations, insofar as the achievement of the purpose of the contract is jeopardised, in cases of mandatory liability under the Product Liability Act (ProdHaftG), in the event of injury to life, limb or health and also not if and insofar as we have fraudulently concealed defects in the item or guaranteed their absence. The rules on the burden of proof shall remain unaffected.

3. Unless otherwise agreed, contractual claims which the buyer has against us on the grounds of or in connection with the delivery of the goods shall become statute-barred one year after delivery of the goods. This period shall also apply to such goods which have been used in accordance with their customary manner of use for a building and have caused its defectiveness, unless this manner of use has been agreed in writing. Our liability for intentional and grossly negligent breach of duty as well as the limitation of statutory recourse claims remain unaffected by this. In cases of subsequent performance, the limitation period shall not start again.

IX. Copyrights

1. We reserve the right of ownership and copyright to cost estimates, drafts, drawings and other documents; they may only be disclosed to third parties in agreement with us. Drawings and other documents belonging to offers shall be returned upon request.

2. If we have delivered items according to drawings, models, samples or other documents provided by the buyer, the buyer shall guarantee that the property rights of third parties are not infringed. If third parties prohibit us from manufacturing and delivering such items, in particular by invoking property rights, we shall be entitled – without being obliged to examine the legal situation – to cease any further activity in this respect and to claim damages if the buyer is at fault. The buyer also undertakes to indemnify us immediately against all related claims of third parties.

X. Test parts, moulds, tools

1. If the buyer is required to provide parts to complete the order, they must be delivered free of cost to the place of production in the required quantity, or with an additional quantity to cover any rejects, on time, without cost and free of any defects. If this does not occur, any resulting costs and other consequences shall be borne by the buyer.

2. The production of test parts including the costs for moulds and tools shall be borne by the buyer.

3. Ownership rights to moulds, tools and other devices required for the manufacture of ordered parts shall be governed by the agreements entered into. If such devices become unusable before fulfilment of the agreed output quantity, we shall bear the costs required for replacement. We undertake to keep such devices available for at least two years after their last use.

4. For tools, moulds and other manufacturing equipment provided by the buyer, our liability shall be limited to ensuring the same care as for our own property. The buyer bears the costs for maintenance and care. Our obligation to retain the goods shall expire – irrespective of the buyer's ownership rights – at the latest two years after the last production using the mould or tool.

XI. Place of performance, place of jurisdiction, and applicable law

1. The place of performance for our deliveries is our company. The place of jurisdiction for businesses is the registered office of our principal place of business. We can also bring legal action against the buyer at the buyer's place of jurisdiction.

2. All legal relations between us and the buyer shall be governed by German law in addition to these Terms and Conditions, including the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11/04/1980.

XII. Authoritative version

In cases of doubt, the German version of these General Terms and Conditions of Sale shall prevail.

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