GENERAL TERMS AND CONDITIONS

deVELOpment engineering GmbH (as of 26.11.2007)

 

Validity of Conditions
All offers and services of the supplier are subject to these terms and conditions; they apply to all future business relations even if they are not expressly agreed on again. At the latest upon receipt of the goods or services, these conditions are regarded as agreed. Order confirmations of customers with regard to their own business conditions are hereby explicitly objected.

Deviations from these terms and conditions require written confirmation of the supplier.

Offer and Contract
Acceptances and all orders require the written or telex confirmation of the supplier; this also applies to additions, amendments and subsidiary agreements. Documents and drawings, illustrations, dimensions, weights and other performance data are only binding if they are explicitly agreed in writing.

The employees of the supplier are not authorized to make oral agreements or verbal assurances that go beyond the scope of the written contract.

The supplier reserves ownership and copyright of cost estimates, development drawings and other documents prepared by the supplier; they may not be disclosed to third parties. Joint developments of supplier and purchaser may also not be made available to third parties.

Internet Sales by the Customer
a. The sale of goods on the internet requires our prior written approval. In this regard, the purchaser has to provide information and documentation for the structures, paths, layout and text and picture material available on its website.

b. The purchaser is obliged to present the products of the supplier on his website in an appropriate manner in accordance with the image and reputation of the products. Therefore, the website must use high quality graphics. All advertising activities and any communication with end customers need to be in accordance with the high-quality brand image.

c. The website must allow a simple and intuitive search by brand, product and category. The search results should show the goods together with the brand of the supplier.

d. The products need to be presented well visible on the website. Besides the products and the brand name, no references to other trademarks or third parties can be displayed.

e. The website of the customer must resemble the current technical state of the art and needs to be adapted constantly. The purchaser ensures constant availability of the products on his website. He also ensures that all data on the website including those of end customers are best protected.

f. The purchaser is obliged to follow the marketing guidelines of the supplier.

g. Goods which the buyer does not have available on stock may only be marketed on his website with the remark "soon available". Orders may be accepted only if the purchaser has already ordered the goods and is able to dispose them. If the customer receives an order for a product that he has not on stock, he immediately needs to announce the expected delivery date and give his customer the opportunity to cancel the order.

h. The customer is obliged to ensure the availability of the product by appropriate pre-orders.

i. The customer will be available for his customers available during regular business hours of retail trade (currently: Monday-Saturday from 08:00-20:00) by phone and e-mail to provide comprehensive customer service related to the products through qualified personnel.

j. The customer has to inform his customers regularly about the status of their order, in particular order number, delivery time and processing status. The purchaser’s website must offer the option to follow orders online.

l. The buyer is prohibited from selling the goods on internet auction platforms.

m. The customer is prohibited to use trademarks, trade names or other rights owned by the supplier’s organization in an identical or similar way, if this has not been previously explicitly allowed. He will not use these trademarks, business names and other intellectual property rights in neither identical form, nor similar way in his firm or corporation or companies controlled by him or use otherwise as a business name or identification of a business operation.

The purchaser is prohibited from supplying products to third parties that do not meet the above-mentioned criteria.

Prices
The supplier sticks to the prices in his quotes for 30 days beginning on the date of issue, unless indicated otherwise in the offer. Relevant are the prices mentioned in the order confirmation as stated in the order confirmation plus the statutory VAT rate. Additional supplies and services are calculated separately. Prices are ex-warehouse unless otherwise agreed by the supplier including standard pack-aging.

No rebates are granted on small parts and spare parts.

Delivery and Service Time
Delivery dates or periods shall be confirmed in writing. The delivery period begins with the sending the order confirmation; it does not begin before receipt of an agreed payment and the receipt of the customer's documents, permits or approvals by the supplier.

The delivery time is met if the supplier has forwarded the goods to shipping or has communicated its readiness to deliver before the delivery deadline.

Delivery and service delays due to force majeure or due to events for which the supplier is not responsible, or making the delivery significantly more difficult or impossible - particularly strikes, lockouts, administrative orders and other unforeseen obstacles beyond the control of the supplier (even if they occur at the suppliers of the supplier or their sub-suppliers) – the supplier cannot be held responsible even with binding deadlines and dates. The supplier is also not responsible for those circumstances when they occur during an existing delay; in this case, the supplier will notify the Buyer of the beginning and end of such obstacles. They entitle the supplier to extend the service or delivery time for the duration of the impediment plus a reasonable start-up period or to withdraw completely or in part from the unfulfilled portion of the contract.

If the impediment lasts longer than three months, the customer is entitled to withdraw from the unfulfilled part of the contract after a reasonable grace period. If the delivery time is extended or the supplier is released from its obligation to deliver, the buyer cannot derive any claims for damages. The supplier can only appeal to the specified circumstances (lit.4 c), if he informs the customer immediately.

If the supplier is responsible for not complying to promised delivery dates or is in default, the customer may claim compensation for the delay amounting to ½% for every completed week of delay, but no more than 5% of the invoice value of the delayed supplies and services. Further claims are excluded unless the delay is due to at least gross negligence of the supplier. Claims for loss of life, injury to body or of health based on a negligent breach of duty, are not excluded.

The supplier is allowed to supply partial services and deliveries at any time.

Passing of Risk and Acceptance
The risk passes to the buyer as soon as the goods have been delivered to the person performing the transportation or have left the warehouse of the supplier for shipment. This is true, even if part deliveries take place or the supplier covers the shipping costs or provides the delivery to the customer. If shipping is impossible without the fault of the supplier, the risk passes to the customer after notification of readiness for shipment.

In each case the supplier will complete a sufficient insurance against theft, breakage, transport, fire and water damage and other insurable risks. Exceptions are cases where customers explicitly exclude this insurance or are responsible for the transportation themselves (collection at warehouse).

If the customer is responsible for delays of the shipment, the risk passes to the customer on the day of notification of the readiness for shipment, whereas the supplier is obliged to complete a requested insurance to the expense of the buyer.

Notwithstanding the lack of liability of the supplier, the buyer is obliged to accept the delivered goods, even if they have minor defects.

Warranty
The supplier guarantees for a period of two years that the products are free from manufacturing and material defects. A warranty for parts delivered by the customer, whose defective nature only turns out in the processing by the supplier, is not accepted by the supplier. In this case, the customer has to pay the supplier for the work already performed.

The supplier reserves the right to limit the warranty for special parts solely to be used in racing in writing.

The warranty period begins on the date of delivery. If operating or maintenance instructions of the supplier are not followed, or if the product is changed or parts replaced or repaired with materials which do not meet the original specifications, any warranty will thus be eliminated.

No responsibility will be accepted for any damages caused by unauthorized or improper use, incorrect installation or improper operation by the customer or third parties, natural wear, faulty or negligent treatment, unsuitable operating resources, replacement materials, chemical, electrochemical or electrical influences, unless it is a fault of the supplier.

Claims of the buyer from defects expire in all cases after 2 years from the date of the timely submission.

The customer has to inform the supplier about the defects immediately, no later than one week after receiving the goods, in writing. For defects that even with careful examination cannot be discovered within this period, the supplier must be informed in writing immediately after discovery.

In the case of notification within 2 years after delivery by the purchaser that the products do not have the declared properties, the supplier has the choice on its own discretion to replace those parts free of charge, repair or re-deliver them, if their uselessness or their not negligibly affected usefulness is based on a fact that occurred before the passage of risk. Replaced parts become the property of the supplier.

The customer will give the supplier the opportunity and the necessary time to repair or replace the defects on the supplier’s discretion.

If the supplier is in default with remedying the defect and a reasonable period of grace has passed without results, the customer has the right to remedy the defect itself or by third parties and claim compensation for the costs incurred.

Insofar as the complaint of the customer is justified, the supplier shall bear the cost of repair or replacement, as well as of the shipping.

Further claims of the customer, especially claims for damages not to the product itself, are excluded. This disclaimer does not apply to intent or gross negligence of the supplier.

Claims for loss of life, injury to body or health, based on a negligent breach of duty are not excluded.

Retention of Title
The supplier retains title to the goods until the complete settlement of all claims from the supply contract.

The customer may not object to the delivery of security, or pledge. In case of seizure and confiscation or other dispositions by third parties, the purchaser shall inform the supplier immediately.

The assertion of the rights and seizure of the goods delivered by the supplier is not a withdrawal from the treaty.

Payment
Unless otherwise agreed, payment is cash without any deduction to the accounts of the supplier. The supplier is entitled notwithstanding any other provisions of the customer to use the customer payments to pay off earlier debts and will inform the customer about the type of settlement. If costs and interest accrued, the supplier is entitled to the payment of the costs first, then the interest and finally against the delivered goods.

A payment shall not be deemed to have occurred unless the supplier got hold off the total amount. In the case of checks the payment is only complete when the check is cashed.

If the customer is in delay, the supplier is entitled to charge interests on the outstanding amount based on the interest rates commercial banks calculate for overdrafts plus legal VAT. The right to claim further damages by the supplier remains unaffected.

Costs for returned direct debits and collection expenses shall be borne by the purchaser.

If the supplier becomes aware of circumstances questioning the creditworthiness of the customer, then the supplier shall be entitled to the entire balance due, even if he accepted checks. The supplier is in this case also entitled to demand advance or security payments.

If the advance payments the supplier has to make (e.g. to sub-suppliers) exceed a total of 20% of the respective order value, the supplier is entitled to demand advance or security payments.

The purchaser may only set off, retain or reduce payments, even if complaints or counter-claims are submitted, if these claims have been legally agreed or are undisputed.

Design Changes
The supplier reserves the right to make design changes at any time.

Legal Rights
The supplier is taking the responsibility for claims arising from violations of copyrights, trademarks or patents, unless the design of a delivered item comes from the customer. The indemnification obligation of the supplier is limited to the amount of the predictable damage. Additional requirement for the exemption is that the supplier remains the lead of the litigation and that the alleged infringement solely results from the construction of the items delivered by the supplier and is not connected to the use together with other products.

The supplier has the right, to release himself from these commitments in by either

a) obtaining the necessary licenses with respect to the claimed breach of property rights, or

b) providing the purchaser a revised item or portions thereof that in case of an exchange will remove the accusation of infringement with respect to the violating item or its part.

Limitation of Liability
Cancellation by the purchaser: In case of the supplier’s inability or if the complete delivery is not possible before the transfer of risk, the customer is entitled to cancel the contract; the same is true if in an order of similar items the complete delivery of all parts is impossible and the customer has a legitimate interest in rejecting a partial delivery.

When the delivery of the supplier is delayed, the customer is entitled to withdraw if he has set the supplier a reasonable grace period - with the explicit statement that he will refuse the acceptance after this period - and the deadline was not met.

In case of impossibility during the acceptance delay or through the buyer’s fault, the buyer remains liable to pay.

The buyer is entitled to rescind the contract if the supplier has not complied with any reasonable extension for the repair or replacement due to a defect or through his own fault, or if the repair or replacement by the supplier has failed.

Claims of the purchaser, unless the supplier’s intent or gross negligence is proven, shall be excluded.

Excluded from the above exclusion of liability are claims for loss of life, injury to body or health, based on a negligent breach of duty by the supplier.

Jurisdiction
If the customer is a merchant, legal entity under public law or a public law special fund, all disputes or claims arising from the contract will be ruled by the court responsible for the supplier’s headquarters. The supplier is also entitled to take legal action against the customer according to the laws applicable at the customer’s headquarters.

Severability, Severability Clause
For these terms and conditions and all legal relations between the supplier and the purchaser the law of the Federal Republic of Germany is to be applied. If any provision of this terms and conditions or a provision in any other conditions of this agreement is or becomes invalid, this shall not affect the validity of the remaining regulations or agreements. The ineffective provision is then to be replaced by a provision coming closest to the economic objective of the invalid provision.