General Terms

5 August 2002

§ 1 General Information

According to §2 AGB-Gesetz (German law on General Standard Terms and Conditions) the business relationship between the customer (Purchaser) and GERDES AG (Seller) shall exclusively be governed by the terms and conditions for Sale and Delivery as provided below and the General Conditions of Sale for the Products and Services of the Electrical Industry. Other terms and conditions or purchasing conditions shall only be valid upon GERDES AG’s express written consent. It should be stressed here, that the following terms and conditions fully apply to traders. Only private persons may rely on judicial protection according to AGBG (German Act on Unfair Contract Terms) or BGB (German Civil Code). May deadlines and regulations being set here be contrary to maximum limits applying for private persons according to the definition of AGBG or BGB, the corresponding statutory regulations shall automatically enter into force where appropriate.

§ 2 Offers, Pricing Terms

All Seller’s offers and catalogues shall not be binding and imply no delivery obligation. Changes of price and technical data of single products can be made without prior notice. If there already exists a binding sale agreement, the latter is only possible as long as it serves to technical progress and improvements.

The final prices quoted in offers and invoices are ex Meckenheim warehouse excluding postage and packaging, unless otherwise agreed upon between Seller and Purchaser. All products travel at Purchaser’s risk. A transport insurance may be arranged at Purchaser’s express request and expense.

§ 3 Contract Conclusion and Rescission

According to the published terms and conditions, orders are accepted via telephone or internet as well as in written form. The order becomes effective by direct delivery or by dispatch of an order confirmation via fax or email.

The Purchaser may rescind the contract by submitting a written document (also by e-mail) or by returning the product within 2 weeks. Insofar as the order value is more than €40, the Seller will refund the costs of the return (s. §9). It is hereby pointed out that a decline in value due to the use of the product may be taken into consideration and be part of the refund retained.

The right of revocation does not apply to software, audio or video recordings that have been opened (unsealed) by the Purchaser or that were obtained online (e.g. downloaded software or tariff information or firmware that has been transmitted to remote maintained devices). Also excluded are all services for individually adapted versions (OEM products, special versions, development achievements, licensed products).

§ 4 Delivery

The Seller will endeavor to adhere to the non-binding delivery deadlines that, however, cannot be guaranteed except for short sellings that have been separately agreed by contract. Any delays or restrictions in delivery do not entitle the Purchaser to counter-measures, unless he proves that these were due to willful or grossly negligent breaches of the contract, which would entitle him to withdraw from the contract, or the Seller to be fully or partially responsible for the delay or the impossibility of delivery. Claims for damages of whatever type and/or content, that go beyond the purchase price of the controversial products, are excluded.

Deliveries are generally executed at the risk of the recipient. The choice of the transport company falls to the Seller.

The Seller may suspend the delivery, if its credit insurance refuses to cover the further order of the Purchaser on account. In this case, the Purchaser shall arrange for an appropriate financial cover or shall ensure that the existing commercial credits are being paid off. The Purchaser is in default with acceptance of the contractual object from the time classification of the credit insurance has been notified to the Seller.

§ 5 Reservation of Title

The goods remain the property of the Seller until payment is made in full. A prior onward pledging or assignment as security is not allowed. It the Purchaser is a reseller, the goods are subject to extended retention of title until payment is made in full.

§ 6 Maturity of Payment, Delay

The Seller generally delivers according to the terms of payment of its choice. Unless expressly otherwise agreed upon in writing, deliveries take place against payment by direct debit, advance cheque or cash on delivery only. Certain products are only available against certain payment methods (e.g. direct debit) or may be offered at special conditions.

Only cash receipts or the receipt of payment in the Seller’s bank accounts shall be deemed as payment.

Is direct debit agreed for payment method, the following special rules shall apply: If the Purchaser does not comply with its payment obligations, for example, if a bill is not cashed, the given data for the bank account are incorrect or the debit of a payment is returned, the Seller will temporarily block the corresponding customer account as well as possibly all associated services. The Seller is allowed to charge a compensation fee of €10 for this effort. In either case, the Purchaser is charged any return debit note fees which arise (from house bank and third-party bank).

The Purchaser is aware of the fact, that all invoices are due on the date indicated on the invoice. Payments are deemed to have been remitted in due time if the corresponding amounts have been credited to the Seller’s account or have been transferred in cash within the applicable deadlines. If the Purchaser is in default with his obligations to pay, he shall be liable to pay interests of 5% above the respective Deutsche Bundesbank “Basiszinssatz” (Base level) p.a.

The Purchaser is notified about overdue payment by up to 2 reminders. The reminder does not affect the due date of the invoice, but confirms the default of payment. For verification of orderly reminder dispatch it suffices that the Seller provides evidence that the reminder, according to the company’s predefined internal processes that take effect in this event, has been sent to the correct invoicing address. For each reminder after legal or above-mentioned default (whichever falls earlier) the Seller charges additional overdue fines being debited against the Purchaser’s account. If the Purchaser, even then, does still not pay the due amount, the Seller may initiate legal proceedings in order to collect its claims. Obligatorily, data subject to reporting obligations, such as default of payment, reminders and appeals being lodged against, will be forwarded to the credit insurance.

§ 7 Set-off, Retention

According to legal provisions, such as articles 320 et seq. BGB (German Civil Code), a right of retention is possible. The Purchaser shall not be permitted to offset its claims unless such claims have been declared as legally valid or acknowledged by the Seller.

§ 8 Warranty, Liability

Complaints can only be accepted within the legal limitation period. Obvious defects are to be reported in writing immediately, at the latest up to 14 days following receipt of the delivery.

Liability for defects of goods shall, at the Seller’s option, initially be restricted to a free of charge replacement of all parts whose serviceability turns out to be significantly impaired due to fabrication or material deficiencies, or to free of charge repair at the Seller’s company. Only after the spare part delivery has been proven to be unsuccessful by the Purchaser, the latter shall, at its options, be entitled to demand a fair reduction of the purchase price or the rescission of the contract in writing.

Unless specified otherwise below, claims of a wider scope, regardless of type and nomination, are excluded. The Seller shall therefore not be liable for damages not arising directly from the actual supply item; in particular the Seller shall not be liable for loss of profit or damage to any other assets belonging to the Purchaser or a third party. This limit of liability is to the same degree valid for the personal liability of the Seller’s employees, representatives and auxiliary persons. The above exclusion of liability shall not apply if the damage results from intentional breach of contract or gross negligence.

If the Seller is in negligent breach of an important contractual obligation, his obligation to provide compensation shall be limited to the damage typically foreseeable.

The warranty period shall be 24 months, starting from the date of delivery. This period shall be a statutory period of limitation and is also valid for all conceivable legal claims of defects and consequential damages.

In respect of goods with a longer „warranty“, these schemes shall apply from the expiry of the 24 months warranty period on. For unjustified complaints, such as defects caused by operating errors, the Seller reserves the right to debit the Purchaser with a processing and inspection fee as well as with all arising transport costs, since the goods will also be returned at the Purchaser’s expense.

§ 9 Return of Goods by Rescission or Warranty

As a matter of principle, unfree returns of goods will not be accepted by the Seller. The only circumstances where freight costs of returns are to be beared by the recipient are laid down in article 3 (Rescission at purchase price higher than €40) or article 8 (Justified warranty claim). The proper handling of a return requires a RMA number which, first of all, is to procure from the Seller by the Purchaser. RMA number, defect description and copy of invoice shall, then, be included in the return for the purpose of enabling the Seller to orderly process it. UPS pickup is arranged by the Seller. In exceptional cases, the Purchaser may also be allowed to send goods “free to factory”. For a potential reimbursement (of up to the amount of standard Deutsche Post fee for parcels and packages – according to weight), Purchaser’s bank details shall be completed in the RMA form.

§ 10 Applicable Law, Legal Venue and Validity

Place of jurisdiction for all legal proceedings is Bonn. Place of performance is Meckenheim. The laws of the Federal Republic of Germany apply exclusively. These General Terms and Conditions replace and invalidate all previous terms and conditions.