1. Miscellaneous

1.1 All supplies and services are exclusively governed by the following General Terms and Conditions of Sale of ITOCHU SysTech GmbH (hereinafter "Seller"). The Seller objects to alternative trade conditions which are provided by the Buyer. In addition, alternative conditions, including verbal or telephone arrangements, must be confirmed in writing by  the Seller in order to become legally binding. Silence on the part of the seller is not deemed to be a form of approval.

1.2 These General Terms also apply to all future orders submitted by the  Buyer, regardless of whether the Seller makes individual reference in each order.

2. Offer/Order Confirmation

2.1 Offers submitted by the Seller are without obligation unless otherwise agreed in writing. Information regarding quantity, weight, price, dimensions and other details which are given in the offer and stated in accompanying documents, e.g. illustrations, drawings and other correspondence etc., is only approximate, unless it is expressly declared that they are binding. If the Buyer refers to such details in his offer, they do not portray a warranted quality.

2.2 A contract is entered into upon written confirmation of order or when the Seller executes the order.

2.3 All drawings, illustrations, plans, technical documents etc. remain the property of the Seller and may not be used or photocopied by the Buyer without  the written consent of the Seller, nor may they be made available to  third parties.

3. Prices and Payment

3.1 Unless otherwise agreed upon, prices are valid ex factory (ex works) including loading at factory, but exclusive of packing and other occasions of loading and unloading. In addition to the contractual price, the statutory VAT will be added.

3.2 In the event that the Seller's cost of performance is increased after the date of contract due to the increase of freight rates, surcharges, taxes, other governmental charges, packing charges, or insurance rates, or due to an increase in the costs of the goods to the Seller caused by an increase in the price of the materials or energy input, or in case any variation in rates of exchange causes the Seller to suffer damages or losses in relation to the contract, then the Buyer shall compensate the Seller for such increased costs in so far as this is legally possible.

3.3 Unless otherwise agreed in writing, payment shall be made by means of a letter of credit. The Buyer shall issue  an irrevocable and confirmed letter of credit without recourse in favour of the Seller, in an amount sufficient to cover the contracted amount, consular invoice fees, inspection fees and other charges and expenses to be borne by the Buyer. Such a letter of credit is issued by an internationally recognised first class bank in such form and upon such terms satisfactory to the Seller, and is valid and effective for a period of at least fifteen (15) days after the last day of shipment. This letter of credit shall also provide for  partial drawings against partial  shipment.

3.4 Should any stipulated dead line of payment be exceeded, the Buyer is obliged, from the day after the deadline  and without giving notice of default, to pay interest at the rate of 2% per month on all overdue payments. Default in payment occurs if the invoice has not been settled at the latest by the 30th day after the date of invoice. This condition shall not operate so as to prevent or delay proceedings for the recovery of any  account due and shall not interfere with any other right the Seller may have.

3.5 Should the Buyer be in default with a payment, should a bill of exchange not have been settled when due, or should payment be ceased, then all outstanding claims resulting from all business transactions shall become immediately due and payable. In this case, and in the case of Buyers with whom the Seller has regular business contact, the Seller is entitled to demand a prepayment or security, to supply on a cash-on delivery basis, to suspend further deliveries covered buy the contract until payment has been made, or to cancel the contract or any other contracts existing between the Seller and the Buyer at its own discretion.

3.6 Even in the case of notice of defects or counterclaims, the Buyer is only entitled to a set-off, retention or reduction if the counterclaims are indisputable or have become res judicata.

3.7 Seller and all group-related companies of Seller are entitled to set-off claims against every claim of Buyer and/or of companies related to the Buyer.

4. Insurance

If contract is entered into at a price or prices C.I.F., such price or prices shall include the cost of insurance against marine risks only. If, at the request of the Buyer, the goods are insured against any additional risk, the Seller has the right to charge the Buyer with the premiums paid by the Seller for such additional insurance.

5. Delivery Time and Delivery

5.1 Quoted delivery dates are not binding. Should a particular delivery time be expressly confirmed ("within ...weeks"), then the time for delivery starts with the dispatch of the confirmation of order. A delivery date will never be set before presentation on the part of the buyer of all required documentation, permits, releases including payment of any due down-payments if these have been agreed upon. The delivery terms are deemed to have been observed if the goods to be delivered have left the factory or if the Buyer has been informed that they are ready for shipment before expiry of the delivery date.

5.2 Should the contractual parties determine a foreseeable delay in delivery, they will immediately inform the other party of such a delay and simultaneously confirm a new delivery date.

The delivery date is extended accordingly in case of delays which are not caused due to guilty behaviour on the part of the Seller, in particular in case of industrial action, strike and lock-out, force majeure, delay in delivery on the part of the Seller's suppliers or manufacturers, operational breakdowns, unforeseen difficulties in procuring material, official instructions, lack of transport means lack of personnel etc., to the extent that such circumstances have a considerable influence on the completion or delivery of the goods to be delivered. The Seller is not responsible for the foregoing circumstances if they should take place whilst one of the above mentioned factors is already causing a delay.

5.3 Should a delivery date which has been expressly agreed upon be exceeded, then the Buyer is entitled to set an appropriate final deadline for the Seller. Should the Seller fail to observe this deadline, then the Buyer is entitled to withdraw from the contract by means of a written declaration. Claims for compensation due to non-fulfilment or delay are excluded unless a party is liable due to intent or gross negligence.

5.4 Should the Buyer be in default after unsuccessful expiry of an appropriate final deadline, and should the Seller demand compensation for non-fulfilment, then, notwithstanding the opportunity to assert greater claims for damage, the Seller is entitled to demand compensation amounting to 25% of the sale price of the goods. Should the Seller demand 25%, then the proof of the damage is not necessary. the Buyer is at liberty to prove lesser damage.

5.5 The Seller is entitled to make part delivery.

5.6 Unless otherwise agreed upon in these General Terms, the delivery terms specified in these Terms shall be construed in accordance with the valid INCOTERMS as amended and adopted by the International Chamber of Commerce and which are in effect on the date of each individual contract.

6. Passing of Risk/Acceptance

6.1 The risk is passed to the Buyer when the contractual goods are handed over to the forwarder or freight manager, at the latest however when the goods leave the factory; this is also the case with post-paid delivery, free deliveries, delivery F.O.B. and C.I.F. Unless particular instructions are given by the Buyer in connection with the means of transport and route to be taken, the Seller makes this decision to the exclusion of any possible liability.

6.2 Upon request of the Buyer and at the Buyer's cost, the delivery may be insured by the Seller against theft, breakage, damage in transit or caused by water or fire, as well as other insurable risks.

6.3 If the dispatch is delayed due to circumstances which do not lie within the Seller's responsibility, then the risk shall be passed to the Buyer on the day of readiness for dispatch. However, upon request and at the cost of the Buyer, the Seller is obliged to arrange for the insurances required by the Buyer.

6.4 Delivered goods have to be accepted by the Buyer, even if they show minor defects, without prejudice to any rights.

7. Retention of Title

7.1 The title to all goods delivered remains with the Seller (goods with title retained) until all receivables, including all balances, due to Seller or group related companies which entitle Seller to an off-set have been settled subject to the following conditions:

7.2 The use of material for manufacture, to which Seller has retained the title, is done on the behalf of the Seller being the manufacturer according to Sec. 950 of German Civil Code without Seller being under any obligation.

7.3 The material used for manufacture is deemed to be material to which the title has been retained according to this paragraph. In case the Buyer should process or combine such goods to which the title has been retained with other goods, Seller shall become joint owner of the new goods in the proportion of the invoice value of the goods with the retained title to the invoice value of the other goods used.

Should, in case of processing or combination, the Seller's ownership expire, Buyer agrees to transfer its title to the newly manufactured goods to Seller in the proportion corresponding to the invoice value of the goods to which the Seller had retained the title. Buyer shall store such goods on Seller's behalf free of charge. The arising ownership rights are deemed to constitute goods with retained title in the meaning of this paragraph. Buyer may only sell goods with retained title in the course of its ordinary business and under the usual conditions, as long as Buyer is not in default of payment and provided the claims resulting from the sale are assigned to Seller in accordance with subsequent provisions. The Buyer is not entitled to otherwise dispose of the goods to which the title has been retained. Buyer's claims resulting from the sale of goods with retained title are already assigned to Seller in advance. They serve to protect Seller's rights in the same manner as the goods to which the title has been retained.

7.4 Where goods with retained titles are sold together with other goods not purchased from the Seller, the assignment of claim resulting from the sale shall be limited to the amount of the invoice value of such sold goods to which Seller had retained the title. If the Buyer uses goods with retained title to fulfil a contract of manufacture or assembly, the foregoing provisions apply correspondingly according to the claim arising from  such contract.

7.5 The Buyer shall be entitled to collect the claims assigned to Seller subject to the fact that the Seller may revoke such right at any time. In no event may Buyer assign the claim to other parties. Upon request of Seller, the Buyer is obliged to inform his customers immediately about the claim assignment, if the Seller has not already done this, and to submit to Seller all information and documents which are required in order to collect the claim. The Buyer shall inform Seller immediately in writing about all claims enforced by third parties in respect of goods with retained title or claims assigned to Seller. Should the value of securities given to Seller according to the foregoing provisions exceed all secured claims by more than 15%, then at the request of the Buyer the Seller shall be obliged to release securities of the Seller's choice. if the above security provisions are deemed to be invalid under the laws of the country in which the goods delivered by Seller are located, a corresponding provision is permissible under such laws and which gives Seller the same degree of security shall be deemed to have been agreed upon. Should the Buyer be required to collaborate in this respect, he shall be obliged to take all actions which are necessary to implement and maintain such rights.

8. Breach of Contract

If the Buyer

8.1 makes a fault in or commits any breach of its obligations to the Seller under this contract, or any other contract with the Seller or

8.2 is involved in any legal proceedings in which its solvency is involved, or

8.3 commences liquidation, or ceases or threatens to cease to trade, or if serious doubts arise as to the Buyer's solvency, then in any such case, the Seller shall immediately become entitled (without prejudice to its other claims and rights under this contract) to suspend further performance of this contract for such time not exceeding six months as it shall in its absolute discretion think fit or ( whether or not notice of such suspensions shall have been given) to treat the contract as wrongfully repudiated by the Buyer and forthwith terminate the contract.

The Seller will notify the Buyer of the exercise of its option to suspend or terminate this contract within a reasonable time of its becoming aware of the act or default on the Buyer's part giving rise to the Seller's rights under this condition.

9. Installation

9.1 The installation and setting up of machines by the Seller must be agreed upon separately. In this case, the machines will be set up/installed and made ready for operation. In this respect, the Buyer will prepare the necessary space and fulfil all necessary technical requirements at his own cost. The Buyer will receive appropriate information for this from the Seller.

9.2 The Seller will inform the Buyer of the date when the machines will be ready for operation ("installation day"). Unless otherwise agreed upon in writing, the installation day will be set at the latest two months after delivery date. If such installation/setting up cannot take place immediately upon delivery for reasons given by Buyer, the date of delivery is deemed to be the installation day.

9.3 Immediately upon receiving notice of the machines' readiness for operation, the Buyer must test such machines. The Buyer is obliged to inform the Seller immediately in writing of any defects in the installation. Unless otherwise agreed upon in writing, the commissioning day and the day of acceptance are deemed to be one week after the installation day.

9.4 All other regulations of the General Terms are applied accordingly, in particular with reference to the warranty claims and exclusion of liability, as far as it is legally permitted.

Any warranty period begins at the date of installation of the goods.

9.5 On an appropriate scale, the Seller is obliged to give the Buyer an introduction into the operation of the machines.

10. Warranty

10.1 Notice of defects to the delivered goods must be submitted in writing to the Seller with exact details as to type and extent of such defects within 15 days after receipt of the goods or as soon as possible in the case of delayed discovery of hidden defects, otherwise the goods are deemed to be faultless. Defects to the goods, which are arise during transportation via an independent freight manager, must be immediately asserted with the freight manager according to transportation conditions which apply to the transportation in this case.

10.2 Unless otherwise agreed upon, within a period of 12 months from the date of passing of risk, to be proved by the date of loading papers, the Seller may chose to remedy, re-deliver or replace all parts or services which are proven to be useless or the serviceability of which becomes seriously impaired due to the circumstances occurring before the date of passing the risk, in particular due to erroneous construction, poor-quality material or faulty design. Replaced parts become the property of the Seller.

10.3 In particular the Seller shall not be liable for, and deliveries and services shall not be guaranteed for damage caused for example by the following reasons:

v Inappropriate or careless usage
v faulty assembly
v improper installation or putting into operation by the
         Buyer or third parties
v fair wear and tear
v faulty or negligent handling
v improper transportation
v improper maintenance in contrary to instruction manual
v inappropriate working stock
v alternative material
v defective construction work
v inappropriate building ground
v use of inappropriate software
v chemical, electrochemical or electrical influences

Seller shall not be liable for any expenditure incurred by the Buyer in respect of goods proved or alleged to be defective.

10.4 After an agreement is reached with the Seller, the Buyer must concede him all the time required and afford him the opportunity to carry out all repair work and replacement deliveries necessary at the Seller's discretion, otherwise the Seller shall not be liable for any arising defect. Only in urgent cases endangering working safety and in order to exclude any excessive damage - in which case the Seller must be immediately informed - or if the Seller should fail to eliminate the defect in due time, is the Buyer entitled to eliminate the defect itself or with the help of third parties and to claim compensation for the resulting costs agreed by the Seller.

10.5 Paragraph 10 applies accordingly for any claims asserted by the Buyer with the respect to the subsequent remedying of defects, replacement deliveries or compensation, which arise due to suggestions made or advice given within the boundaries of this contract, or via infringement of contractual collateral duties.

10.6 Further claims on the part of the Buyer against the Seller and its employees are excluded; this applies in particular to any claims for compensation of damages which do not occur to the delivered goods themselves, for collateral or consequential damages. However, in the case of personal injury or damages to private possessions, parties are made liable according the Product Liability Actor in case of intent, gross negligence or absence of guaranteed securities.

10.7 The Seller is not liable for damages caused by any errors discovered in the documents submitted by the Buyer (drawings, specifications, examples or similar). In the case of improper amendments or necessary repairs carried out by the Buyer or third parties without prior consent of the Seller, the Seller is not liable for the respective consequences.

10.8 No liability in respect of goods undelivered or lost, pilfered or damaged in transit will be accepted by the Seller where the risk of loss or damage to the goods has passed to the Buyer before that occurrence or where the haulier has been given a clear receipt for the goods.

10.9 Unless anything else has been expressly arranged, samples supplied shall be deemed to be standards; no warranty is provided for perfect congruity of delivered goods to the samples.

10.10 The goods may only be returned to the Seller if so agreed by the Seller, and the latter's certificate as to the weight or quantity of the returned goods received by it shall be final and binding.

10. Where a complaint or a claim has been made in respect of goods proved or alleged to be defective, the Seller may suspend further deliveries of goods under this contract until the validity of such complaint or claim has been finally determined and in such event the applicable delivery date or dates shall be postponed accordingly.

11. Impossibility of Perfomance/Liability

11.1 If the contract becomes frustrated or if the Seller is incapable of fulfilling the required performance, then the general legal principles apply under following conditions: If the impossibility of performance is caused by the fault of the Seller, then the Buyer's claim for compensation is restricted to the limitation of 10% of the value of that part of the delivery or service, which cannot appropriately implemented or provided as agreed. Any further claims on the part of the Buyer are hereby excluded. This does not apply in case of intent or gross negligence. The right of the Buyer to withdraw from the contract remains unaffected.

11.2 Should unforeseeable circumstances, in particular riot, strike, lock-out, war mobilisation, energy deficiency, traffic disturbances, official intervention, political unrest or other acts of force majeure, considerably alter the economic importance or the contents of the delivery or service, or have considerable effect on the business operations of the Seller, the contract will be modified appropriately, in so far as this is done in good faith. If this is deemed economically impossible, then the Seller is entitled to withdraw from the contract. If the Seller chooses to make use of his right of withdrawal, the Seller has to inform the Buyer immediately after the Seller becomes aware of the consequences of such an event, even if an extension to the delivery date has originally been agreed upon with the Buyer.

11.3 Compensation claims asserted on the part of the Buyer, which ensue from the positive violation of contractual duties or from the violation of duties in connection with the contract or from a tortuous act are excluded. This does not apply in the case of personal injury or damage to private possessions, whereby a party is liable according to the Product Liability Act or in case of intent or gross negligence. This liability restriction also applies to the Buyer.

12. Infringement

The Buyer shall be solely responsible for the consequences of any infringement of any patent, trademark, registered design or other industrial property right resulting from the Buyer's use of any of the goods, and the Buyer shall fully indemnify the Seller in respect of all costs, charges expenses incurred by the Seller as a result of any such infringement or alleged infringement.

13. Governing Law/Jurisdiction/Place of Fulfilment

13.1 The contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. Place of jurisdiction for disputes resulting directly or indirectly from the contractual relationship is Düsseldorf, Federal Republic of Germany, if permissible under such laws.

13.2 If not otherwise provided in the General Terms, place of fulfilment shall be the place of delivery of the goods or the place of fulfilment of services; place of fulfilment in respect of payment obligations shall be Düsseldorf.

14. Severability

Should any individual provision of these General Terms and Conditions of Sale be or become ineffective, then the validity of the remaining provisions will remain unaffected. In place of the ineffective provisions a new legally accepted regulation or administration will be substituted, which corresponds to or approximates the originally desired economic purpose of the parties. No waiver by the Seller of any breach shall operate as a waiver of any later breach.

15. Principles of Contract

With respect to contracts based on these General Terms, the parties agree that they will always act lawfully and will obey any governmental orders, restrictions etc.

ITOCHU SysTech GmbH
www.itochu-systech.de
info(at)itochu-systech.de