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General terms of delivery and payment

1. General

These terms of business are applicable for all contracts that are entered into by Messrs. Niemetz Torsysteme GmbH. These terms of business shall be valid for the Niemetz company in its capacity as either seller or factory. Our installation conditions shall also be applicable in the case of contracts for on site delivery and installation. We reserve our property rights and copyrights for the documents provided with the quotation. Making available to third parties - even in extract form - shall be only permitted subject to our express agreement.

Purchasing stipulations of the customer (buyer) deviating from these terms and conditions shall only be binding should the Niemetz company recognise in writing such stipulations made by the customers.
These terms of business are an integral part of the contract with merchants also for all business concluded at a later date.

2. Prices

Unless otherwise agreed all prices quoted are to be understood ex-works or warehouse plus the legislative valid Value Added Tax (which is likewise applicable for transport costs, freight and packing).

Should the period between placing and processing the order, delivery and installation, respectively, exceed four months the Niemetz company shall have the right to make valid justified increases in price in so far as these are due to price increases by aluminium or steel plants and increases in wages in particular.
As far as merchants and tradesmen are concerned the Niemetz company shall also have the right to make valid the above-referenced price increases within a period of three months. In both cases the parties to the agreement shall have the right to withdraw from the contract within one week after such price increases become known in so far as this contract has still not been fulfilled.

3. Terms of payment

Payments are to be made in cash without any deductions. Advanced payments and instalments shall not be subject to interest. Discount for payment in cash must be expressly agreed. The proportion of the price for installation shown in the invoice shall become immediately due for payment after completion of installation. Drafts will only be accepted as a form of payment and only after previous agreement. Credit notes for drafts and cheques will be issued subject to receipt less all expenses valued on the day on which we can finally dispose of the equipment.

Offsetting against liabilities shall be excluded unless the counter claim is undisputed and has become legally final.

We shall be released from any further obligations to deliver even in the case of other business should the obligation to make payment not have been kept. We shall have the right to charge merchants and tradesmen fault interest to the amount of the usual bank interest rates from the date payment becomes due.

Should we become aware of circumstances which bring the credit worthiness of the orderer in doubt, we shall have the right to demand payment in advance or guarantees for still outstanding deliveries and/or performances.

Should the orderer stop payments, go into bankruptcy or commence out-of-court settlement proceedings any discounts, adjustments and other such benefits granted shall be considered as not given on the still not paid claims.

4. Retention of title

All goods delivered and services provided remain the property of the vendor and the manufacturer, respectively, until full payment of the cost price has been made and payment has also been made for all previous and future deliveries of goods and the provision of services that form part of the business agreement, including all ancillary costs.

Until such times the buyer shall not be entitled to lien the goods or the services to a third party or to transfer ownership as surety. Any processing gives reason for acquisition of property of the seller. In terms of the reservation of title, the processed goods take the place of the goods delivered. In the case of a current account, the reservation of title is deemed to be surety against the balance outstanding.

The customer may dispose of goods subject to reservation only in accordance with normal business practice and as long as he has not fallen behind in payments; this is subject, however, to the proviso that the moneys accruing from the further disposal of the goods subject to reservation, which also includes complying with a work contract or a work supply contract, immediately pass to us.
All financial entitlement arising from the subsequent sale to or use by a third party passes to the vendor (contractor) as surety for the total sum stated in the original account.

At our request, the customer is obliged to provide information about any assigned claims as stated above and to provide a list of names of creditors.

As the indirect owners we are entitled to enter the customer's business premises and works at any time, in order to verify the existence of the goods subject to reservation.

5. Delivery time

The delivery time is calculated from the date on which all details in the commission are clarified and agreed to the date of the completion in the works. Compliance with the delivery time assumes the punctual delivery of all documentation by the customer, the punctual clarification and approval of any plans, if necessary, and compliance with the agreed conditions of payment.

The delivery dates are notified to the best of our ability and are valid except for unforeseen events for which Messrs Niemetz are not responsible, such as acts of providence, hostilities, strike or any other delays not attributable to Messrs Niemetz.

The delivery date may be exceeded by up to four weeks without the other side's being entitled to make a claim. In the case of business with a merchant, default shall not begin until eight weeks after the promised delivery date, unless this is the result of gross negligence by Messrs Niemetz.

Messrs Niemetz are responsible for damages only if they are proved to have acted wilfully or with gross negligence. Moreover, in the case of merchants, liability for subordinate vicarious agents lapses wholly, provided there is no failure to meet major obligations.

6. Transfer of risk

Risk is transferred to the customer as soon as the goods leave the works. Packing, loading and transport are undertaken to the best of our ability, are always on account and are at the customer's risk. In the case of damage in transit the customer must provide a statement giving the facts without delay. In the case of delivery free at building site, the agreed price includes HGV transport only on a passable road. Unloading and transport of the goods to a the place where they will be used or a storage facility is the responsibility of the customer who in the case of delay must in as far as this is concerned bear the expenses and risks involved in unloading, stacking and return transport.

7. Liability and guarantee

The goods must be examined immediately on arrival at the point of delivery. Complaints about obvious defects must be asserted in writing immediately after completion and at the latest within 14 days of receiving the goods or acceptance of the service provided.

In the case of purchasing contracts with merchants, non-obvious defects must be notified immediately, otherwise no claims may be made on the guarantee.

In the case of contracts with works we provide a guarantee for the installation of doors for a period of 2 years; the guarantee for metal fittings, electric switch equipment and electric drives is for 12 months.

This does not include:

• faults that occur in the course of normal wear and tear.
• faults that occur as a result of inadequate installation and assembly work by third parties, as a result of incorrect or negligent treatment, or of subjecting the goods to inappropriate stresses and strains.
• faults that are caused by modifications or repairs undertaken without prior agreement with us by the customer or by a third party.
• the light-fastness of plastic coating.

A claim may be made under guarantee only when the first signs of susceptibility to defect were already given at the time of delivery; the claim is limited to repair: verifiably defective parts will be provided without charge. In the case of the failure of repairs or replacement parts the customer can claim a reduction or withdraw from the contract. Minor superficial imperfections (paint blemishes) on the front surface do not qualify as grounds for complaint -- the surfaces comply with industrial quality norms.

It is assumed that moving parts will be lubricated from time to time.

8. Right to withdraw

The user in accordance with the general terms has the right to withdraw from the contract on account of the following unforeseeable events: act of providence, strike, natural catastrophes, and also on account of unforeseeable not to be overcome hindrances for which the user is not to blame. In the case of deals the user may withdraw if he cannot complete as a result of an industrial conflict. However, a right to withdraw, is given in the case of unforeseen events in permanent and recurrent contractual relationships. Furthermore, the user shall be entitled to withdraw from the contract in the case of non-supply by merchants. This applies to people other than merchants if the user proves that he had concluded a hedging transaction with the deliverer and was let down by him.

9. Place of performance, place of jurisdiction and law

The place of performance for both parts of the contract is the registered office our firm. The place of jurisdiction for any disputes arising from the contractual relationship is Bamberg. The law of the Federal Republic of Germany applies. In any document the German version is binding.