AGB/ENG

Delivery and Payment Conditions

1. Scope and form
a) Our Delivery and Payment Conditions apply exclusively in the
respectively valid version for all present and future business
relationships, without requiring reference thereto in each individual
case. Any deviating, opposing or supplementary general terms of
business shall not become a contractual component – even in the
event of the seller’s knowledge – unless their validity is expressly
agreed in writing. Even if the seller refers to a document which
contains the terms of business of the customer or a third party, or
which refers thereto, this shall not constitute agreement with the
validity of such terms of business.
b) Customers within the meaning of the Delivery and Payment
Conditions include consumers (Section 13 BGB (German Civil Code))
as well as enterprisers (Section 14 BGB), legal entities under public
law or special funds under public law.
c) Legally relevant declarations and notifications of the purchaser in
reference to the contract (e.g. setting of deadlines, notice of defects,
withdrawal or reduction) must be submitted in writing, i.e. in text or
written form. In order to comply with the requirement of the written
form, transmission by telecommunications shall suffice – in particular
by email or fax. However, in case of transmission by
telecommunications, enterprisers must send a copy of the signed
declaration.

2. Offer and delivery
a) All offers of the seller are non-binding and without obligation, insofar
as they are not expressly marked as binding or contain a certain
acceptance period. The seller is only obliged to provide delivery
following written confirmation of the order.
b) The purchase agreement concluded in writing, including these
Payment and Delivery Conditions, is solely decisive for the legal
relationship between the seller and the customer. This represents all
agreements in full between the contracting parties on the contractual
object. Verbal agreements of the seller prior to conclusion of this
contract are legally non-binding and verbal agreements between the
contracting parties shall be replaced by a written contract, as long as
they do not expressly stipulate that they continue to apply bindingly.
c) Supplements and amendments to the agreements, including these
Delivery and Payment Conditions, must be made in writing to be valid.
d) Delivery periods and dates are approximate delivery details, unless
they are agreed bindingly and in writing.
e) The seller shall not be liable for the impossibility of delivery or for
delivery delays, insofar as these are caused by force majeure or other
unforeseeable circumstances at the time of contractual conclusion,
e.g. operating disruptions of any kind, difficulties in material and
energy procurement, transport delays, strikes, legal lockouts,
shortages of workers, energy or resources, difficulties in the
procurement of necessary operating permits, official measures or
pending, incorrect or unpunctual delivery by suppliers, for which the
seller is not responsible. Where such circumstances significantly
impede or render impossible delivery or performance for the seller,
and the impediment is not merely temporary, the seller is permitted to
withdraw from the contract. In the event of temporary hindrances, the
delivery or performance periods shall be extended or the delivery
dates and times postponed by the period of the impediment plus a
reasonable start-up time. Insofar as the acceptance of the delivery or
performance is unreasonable for the customer as a result of the
delay, the customer may withdraw from the contract by promptly
submitting a written declaration to the seller.
f) The occurrence of our default on delivery is determined in accordance
with statutory provisions. In any case, a warning with a suitable grace
period from the purchaser is required.

3. Dispatch
The transfer of risk in dispatch shall be governed by Section 447
BGB, even if carriage-free dispatch or FOB or CIF shipment is
agreed.

4. Payment
a) Invoices are payable on the stated payment period or are otherwise
due immediately.
b) Unless otherwise agreed in individual cases, prices are stated ex
works in addition to the statutory value added tax. Any discounts as
well as sales and carriage deductions shall become invalid upon
expiry of the payment period.

5. Reservation of ownership
a) The seller reserves ownership of the delivered goods and in
accordance with Section 449 in conjunction with the following
additional agreements.
b) In case of transactions with enterprisers, the delivered goods shall
remain the property of the seller until the complete settlement of all
receivables owed to the seller from the business transaction with the
enterpriser, including future receivables and such receivables from
any outstanding balance.
c) The customer is obliged to treat the reserved goods with care and to
store it properly, separate from its other inventories. It must be
insured against fire. Proof of insurance must be provided to the
seller upon request. If the reserved goods is pledged, damaged or
lost, the customer must promptly inform the seller in writing.
d) The processing or transformation of the reserved goods by the
customer shall always be performed for the seller. The seller and
customer agree that, in the event of the processing or
transformation of the reserved goods, the ownership of the new
object shall be transferred to the seller at the time of its creation and
the customer shall act as custodian of the same prior to and during
processing or transformation.
In the event of the processing or transformation of the reserved
goods in combination with goods of other sellers, the seller shall
obtain co-ownership of the new object in proportion to the value of
the reserved goods to the value of the other goods. The new object
shall be treated as the reserved goods.
e) If the reserved goods is inseparably mixed with other objects not
belonging to the seller, the seller shall obtain co-ownership in the
new object in proportion to the value of the delivered goods to the
other mixed objects at the time of mixing. If mixing occurs in a
manner in which the object of the customer is to be seen as the
main object, it shall be agreed that the customer shall transfer coownership
to the seller on a proportionate basis. The customer shall
retain the resulting sole ownership or co-ownership for the seller.
f) The customer is permitted to resell the reserved goods in the
ordinary course of business. The customer is not permitted to
otherwise dispose of the reserved goods, in particular not to pledge
or collateralise the reserved goods.
g) In order to secure all claims of the seller (including any cost
reimbursement claims due to legal costs), the customer hereby
assigns in advance all receivables against third parties from the
resale of the reserved goods to the seller – regardless of whether
the reserved goods was resold without or after processing,
transformation or mixing. In order to secure all claims of the seller,
the customer also assigns the receivables to the seller, which the
customer accrues against a third party due to the combination of the
reserved goods with a property. The seller accepts the assignments.
h) The seller authorises the customer to collect the assigned
receivables for as long as it duly fulfils its obligations towards the
seller. The customer must pass on the individual amounts
immediately to the seller. If this does not occur, the amounts must
be retained separately. The authorisation of the seller to collect the
receivables itself remains unaffected. However, the seller
undertakes not to collect the receivables so long as the customer
complies with its payment obligations, does not enter payment
default, cessation of payment does not occur and no application to
open insolvency proceedings is filed. Should one of these
circumstances occur, the seller may demand that the customer
discloses to the seller the assigned receivables and their debtors,
provides all information required for collection, hands over the
associated documents and informs the debtors (third parties) about
the assignment.
i) In the event that the customer acts in violation of the contract, in
particular in the event of payment default, breach of its obligation to
carefully handle and properly store the reserved goods, violation of its
information obligations towards the seller, cessation of payment and
application to open insolvency proceedings, the seller is permitted to
withdraw from the contract and demand the return of the reserved
goods.
The seller undertakes to release the securities to which it is entitled at
the request of the customer insofar as the realisable value of the
securities exceeds the receivables to be secured by more than 10%;
the seller is free to select the securities to be released.
Following the complete fulfilment of all liabilities of the customer from
the business transaction, the ownership of the reserved goods and
the assigned receivables shall directly and unconditionally be
transferred to the customer.

6. Warranty
a) The customer undertakes to accept the goods and store it properly,
even if defects are visible.
b) Enterprises must promptly – no later than within one week of receipt
of the goods and its processing – report visible defects to the seller in
writing, exactly stating the asserted defects and the place of storage.
For hidden defects, the deadline of one week commences upon
discovery of the defect. Any warranty shall be excluded in the event of
delayed notice of defects. For building materials and other goodss
intended for installation or other further processing, an inspection
must be carried out directly before processing in any case.
c) The customer must demonstrate all warranty requirements, in
particular the time of discovering the defect and the punctuality of the
notice of defects.
The seller shall grant warranty towards enterprisers initially only by
way of subsequent improvement or replacement delivery.
The consumer has the choice of whether the warranty is to be fulfilled
by way of subsequent improvement or replacement delivery.
However, the seller is permitted to refuse the type of chosen remedy if
it is only possible at unreasonable expense and the other type of
remedy does not have any significant disadvantages for the
consumer.
d) Should the remedy fail, the customer may demand at its discretion a
price reduction or the reversal of the contract (withdrawal). In the
event of marginal contractual violations and marginal defects, the
customer shall not be entitled to a right of withdrawal.
If the customer withdraws from the contract due to a legal or material
defect following a failed remedy, the customer shall not also be
entitled to a claim to compensation due to the defect.
If the customer demands compensation following the failed remedy,
the delivered goods shall be retained by the customer if this is
reasonable for the customer. The compensation shall be limited to the
difference between the purchase price and the value of the defective
object, unless the seller concealed the defect in bad faith.
e) The warranty period according to Section 438 (1) No. 3 BGB amounts
to one year from delivery of the goods for enterprisers.
f) Remedy shall not encompass the dismantling of the defective object
nor the subsequent installation if we were not originally obliged to
provide installation. We shall reimburse the expenses required for the
purpose of inspection and remedy, in particular transport, carriage,
work and material costs, as well as dismantling and installation costs,
in accordance with the statutory provisions, if a defect is actually
present. Otherwise, we may demand from the purchaser the
reimbursement of the costs incurred due to the unjustified request to
rectify the defect (in particular inspection and transport costs), unless
the lack of a defect was not evident for the purchaser.

7. Liability to pay compensation due to culpability
a) The liability of the seller to pay compensation – regardless of the legal
grounds, in particular for the impossibility, delay, defective or incorrect
delivery, contractual violation, breach of duties in contract
negotiations and tort – is unrestricted according to this section 7 so
long as it respectively arises due to culpability.
b) The seller shall not be liable in the event of the simple negligence of
its bodies, legal representatives, employees or other auxiliary agents,
insofar as this does not relate to a breach of an essential contractual
duty. Essential contractual duties include the obligation to provide
punctual delivery and installation of the delivered goods, its lack of
defects which impede its functionality or suitability for use more than
just insignificantly, as well as duties of advice, protection and care
which are to enable the contractually compliant use of the delivered
goods for the customer or facilitate the protection of the life and limb
of the customer’s staff or the protection of its property from significant
damages.
c) Insofar as the seller is liable for compensation on the basis of
paragraph 2, this liability is restricted to damages that the seller
foresaw as potential consequences of a contractual breach upon
contractual conclusion or which the seller should have foreseen in
exercising due care. Moreover, indirect damages and consequential
damages that are the result of defects in the delivered goods shall
only be eligible for compensation insofar as such damages are
typically to be expected in the proper use of the delivered goods.
d) In the event of liability for simple negligence, the duty of the seller to
pay compensation for material damages and resulting further financial
damages is limited to an amount of EUR 1.5 million per damage case
(according to the respectively current coverage sum of its product
liability insurance or liability insurance), even if this concerns a breach
of an essential contractual duty.
e) The above liability disclaimers and restrictions shall apply in the same
scope in favour of the bodies, legal representatives, employees and
other auxiliary agents of the seller.
f) Insofar as the seller provides technical information or advice and this
information or advice does not fall under the scope of services
incumbent on the seller and contractually agreed, this shall occur on a
voluntary basis and subject to the exclusion of any liability.
g) The restrictions of this section 7 do not apply to the liability of the
seller due to wilful conduct, for guaranteed procurement qualities, due
to injury to limb, limb or health or according to the Product Liability
Act.

8. Transferability and offsetting
The customer may transfer or assign its claims and rights only with
the written consent of the seller.
The offsetting of counterclaims is excluded unless they are
undisputed or legally determined.

9. Partial invalidity
a) Should individual provisions of the contract with the customer,
including these Delivery and Payment Conditions, be or become
invalid in whole or part, this shall not thereby affect the validity of the
remaining provisions.
b) The fully or partially invalid provisions shall be replaced by a
regulation which comes closest to the original economic purpose of
the invalid provision.

10. Applicable law and trade practices
a) The law of the Federal Republic of Germany and the pertinent trade
practices apply, in particular the Tegernsee practices, insofar as these
Delivery and Payment Conditions do not contain deviating provisions.
The German text of the Delivery and Payment Conditions shall be
legally binding, even if the other business documents, prospectuses
etc. are in a foreign language.
b) The provisions of the UN Convention on the International Sale of
Goodss do not apply. The unrestricted obligation to assume
necessary extrajudicial and judicial legal costs of the injured party
shall likewise always apply to foreign customers.

11. Place of fulfilment and jurisdiction
a) The place of fulfilment for all performances of the company is the
place at the registered address of the seller’s commercial branch and
for delivery obligations of the customer the place from which the
goods was sent; in the event of collection by the customer, the place
of fulfilment shall be the place at which collection occurs.
b) The jurisdiction for all disputes with merchants shall be the place of
the seller’s registered address. The same applies if the customer does
not have a general jurisdiction in Germany or if its residence or
commercial address at the time of the lawsuit are unknown.
Dold Holzwerke GmbH, Talstr. 9, D-79256 Buchenbach