General Terms and Conditions

of FMB Maschinenbaugesellschaft mbH & Co. KG
Paul-Hohe-Str. 1, 97906 Faulbach

FMB Maschinenbaugesellschaft mbH & Co KG, hereinafter referred to as FMB,
bases all of its
business relationships on the following General Terms and Conditions (GTC). The following General Terms and Conditions
(GTC) apply to commercial business transactions with all contractual partners of FMB.

I. Conflicting regulations

The terms and conditions of FMB shall apply exclusively. The application of
any general terms and conditions of the contractual partner is expressly rejected
.
If
forms used by the contractual partner within the scope of the business relationship contain provisions deviating from these GTC, the former shall expressly require the acceptance of FMB for
their validity.
In the event of contradictory GTCs or GTCs regulated unilaterally by the contracting party, the
respective provisions shall be interpreted taking into account the mutual interests of the
contracting parties in shaping the contractual relationship.

II Conclusion of contract

The offers of FMB are subject to change. They are merely an invitation to
to submit an offer. Orders and other agreements therefore only come into effect by
written confirmation or with the start of the handover of the goods.
Complaints regarding the order confirmation of FMB must be submitted to FMB immediately,
at the latest within 8 days of receipt. For
the scope of the delivery and service, the order confirmation of
FMB shall be exclusively authoritative.

III Delivery

Delivery shall be ex works or ex warehouse, unless otherwise agreed
. Each delivery shall be ex works at the expense and risk of the contractual partner.
FMB reserves the right to determine the type of shipment, unless a specific type of shipment has been agreed
.
In the case of self-collection, the contractual partner must check whether the machine or
machine parts have been loaded correctly and report any loading defects immediately.
Agreed delivery dates refer to the provision of the goods for handover
or for dispatch at the factory or distribution center.
Delivery deadlines are not fixed deadlines for FMB. The contractual partner shall be entitled to withdraw from the contract
if it has previously granted FMB a grace period of 30
working days in writing and at the same time threatened to withdraw from the contract.
When exported from the EU, the goods are subject to the European or German
export license requirement. A licensing requirement may also arise
due to the final destination and intended use of the goods.
In the event of force majeure, labor disputes, official measures, delays
or failure of export licenses and operational disruptions for which FMB is not responsible, the
delivery period or acceptance period shall be extended without further ado by the duration of the hindrance,
if these circumstances were objectively unforeseeable for FMB. If delivery or performance becomes impossible due to these
circumstances, FMB shall be released from the
delivery obligation. Claims for damages are excluded in these cases
.
If the Contractual Partner is in default with the call-off of its
order with FMB after setting a deadline of one month, FMB may withdraw from the contract or claim damages for non-performance after the expiry of a grace period of
14 days. In
the latter case, damages of 20% of the net purchase price may be claimed,
which shall not require any proof of its own. The contractual partner reserves the right to prove
that no damage was incurred or that the damage was significantly lower than the agreed lump sum
. FMB reserves the right to prove and claim damages in excess of the lump-sum compensation
.
Contractual penalties shall only be effective vis-à-vis FMB if they have been stipulated for each individual case in a special agreement
. In all other cases,
contractual penalty claims of the contractual partner for exceeding delivery deadlines
are excluded.

IV. Instructions for use

The machines and machine parts covered by the contract are
independent functional units. Whether these machines and machine parts form a functional unit with the
equipment and machines of the contractual partner is
the responsibility of the contractual partner. The contractual partner shall be responsible for checking, on the basis of the data provided to
, whether a trouble-free process is guaranteed when using the
machines and machine parts supplied by FMB.
As the machines and machine parts supplied are complex technical
systems, both installation or attachment and repairs may only be carried out by
specialists, taking into account the state of the art and the relevant standards
.
The machines and machine parts supplied may only be operated by qualified
personnel in accordance with the instructions in the operating manual.
Verbal information on usability with certain machine types is
non-binding and does not release the contractual partner from a detailed examination.
Before installing or attaching the delivered machines, the contractual partner must inspect these
thoroughly for defects.
When converting or repairing the machines, only original accessories and spare parts
may be used or such accessories and spare parts that have been approved by FMB in the respective
individual case.

V. Retention of title

All delivered machines or machine parts shall remain the property of FMB until full payment
of the remuneration and all claims arising from the business relationship, in particular
also any current account balance. In the cheque
bill of exchange procedure, the retention of title shall be extended until the final redemption of the
bill of exchange. The contractual partner may demand pro rata release of the securities insofar as
their realizable value exceeds 20% of the claim to be secured.
The contractual partner shall store the machines or machine parts delivered by FMB at
with the due care of a prudent businessman on behalf of
FMB until the transfer of ownership to the contractual partner. However, he shall be entitled to process, combine and/or resell the machines or machine parts in the
normal course of business.
The treatment and processing of machines or machine parts supplied by FMB but still owned by
shall always be carried out on behalf of FMB, without
any liabilities arising for FMB from this. Consequently, FMB is also the manufacturer within the meaning of § 950 BGB (German Civil Code) in the case of
treatment or processing, while the
contractual partner acts here as an agent of FMB. FMB shall therefore acquire
ownership or co-ownership (§§ 947, 950 BGB) of the intermediate and end products in the
ratio of the value of the new item to the value of its machines or machine parts
at the time of processing or treatment.
The Contractual Partner hereby assigns to FMB – without the need for a special
declaration of assignment – the claims against its contractual partners arising from the resale or goods subject to retention of title
until all claims of
FMB have been settled, including all ancillary rights, in the amount of the value of its
delivery. This shall apply accordingly in the case of processing and combination.
Subject to revocation, the Contractual Partner shall be authorized to collect the receivables
arising from the resale, etc. The
company FMB shall not make use of its own collection authorization as long as the contractual partner meets its
payment obligations.
If requested by FMB, the defaulting contractual partner shall notify its debtors of the
assignment and provide the information required to assert its rights against
its debtors and hand over the documents required for this purpose to
.
The
contractual partner may neither pledge nor assign by way of security the machines or machine parts subject to retention of title. Any seizures,
which are carried out at the instigation of third parties, must be reported immediately.
FMB reserves the right to make the export of the delivered goods dependent on express,
prior consent.

VI Warranty

Recognizable defects or incorrect deliveries must be reported in writing to
within one week of delivery, but in any case before processing or installation. In the case of
delivery by trucks of FMB or carriers commissioned by FMB,
damage must be ascertained in the presence of the truck driver. Complaints made after
resale or installation cannot be considered. FMB
accepts no liability for
damage caused to the component during or after installation or as a result of
inadequate planning or improper installation.
Hidden defects must be reported in writing to
within one week of their discovery.
FMB may, at its discretion, repair or replace the machines or
machine parts supplied by us in order to remedy defects that have been justifiably notified.
If replacement deliveries or repairs fail or if FMB is in default with the
replacement delivery or repair or if they require a disproportionate effort, only a reduction in the purchase price may be demanded. If replacement deliveries or repairs are delayed or if they require disproportionate effort,
only a reduction in the purchase price may be demanded.
Before repairing the damage itself, an agreement must be reached with FMB regarding the scope and costs at
.
The warranty period begins when the goods are made available at the factory or
distribution center, but not before the agreed date. Warranty claims
are subject to a limitation period of 12 months.
The warranty extends only to the area of intended
use, as a rule – unless otherwise agreed in individual cases –
to the country in which the buyer has his residence or branch office, up to a maximum of
to the EU external border.

VII Liability

If FMB reserves production capacities at the instigation of the Contractual Partner and
is delayed or not executed for reasons for which FMB is not responsible
, the Contractual Partner shall also be liable for the resulting
damage.
Claims for damages and reimbursement of expenses by the contractual partner, regardless of the legal basis
, in particular due to breach of duties arising from the contractual obligation and
from unauthorized action, are excluded.
This does not apply in cases of mandatory liability, e.g. under the German Product Liability Act, in
cases of intent, gross negligence, injury to life,
limb or health or breach of material contractual obligations.
However, the claim for damages for the breach of essential contractual obligations is limited to
the foreseeable damage typical for the contract, unless there is intent or gross
negligence or liability for injury to life, limb or
health. A change in the burden of proof to the detriment of the contractual partner
is not associated with the above provisions.
Insofar as the contractual partner is entitled to claims for damages under this Section VII,
these shall become statute-barred upon expiry of the limitation period applicable to claims for material defects
within one year.

VIII. Terms of payment

The prices are quoted ex delivery warehouse or ex
company acting on behalf of FMB, excluding freight and VAT, subject to
other agreements.
Unless otherwise agreed, FMB’s invoices shall be payable
within 10 days of receipt of the invoice, without any deductions.
FMB reserves the right to accept bills of exchange and checks. Acceptance
shall always be on account of performance only. Discount charges, collection charges and all other costs
shall be borne by the contractual partner and are to be paid immediately in cash. FMB is under no obligation to
timely presentation, protest, etc. In the case of payments by bill of exchange and
check, the value date of the bank shall be deemed to be the date of receipt of payment, subject to the
condition that the check or bill of exchange is deemed to have been cashed.
If the contractual partner is in arrears with a due payment or if there is a significant deterioration in his
financial circumstances after conclusion of the contract, FMB may demand cash payment for delivery of the
goods for deliveries still outstanding from
current contracts, discontinuing the term of payment, or refrain from further deliveries altogether and declare withdrawal from the contract or demand compensation
for non-performance, setting a grace period of 10 days. This shall not apply to that part of the delivery which the
contractual partner has rightly objected to or if security has been provided.
If payment is received by the contractual partner after default, default interest shall be charged at
in the amount of the usual bank discount rate, but at least 5%
above the respective discount rate of the Deutsche Bundesbank or the corresponding
interest rate of the European Central Bank.

IX. Place of jurisdiction, applicability of German law

The contractual relationship between the parties is subject to German law.
The place of performance and jurisdiction is – provided the contractual partner is a registered trader –
Faulbach.
The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

X. General provisions

The General Terms and Conditions of FMB shall also be effective if – within the framework of an ongoing business relationship at
– they do not expressly refer to these
in subsequent contracts.
Should any provision of these GTC be invalid, this shall not affect the validity of the remaining
provisions.
Invalid provisions of these GTC shall be replaced by the provision that comes closest to the economic intention of
in connection with the invalid clause
.
Additional agreements must be made in writing.

Status: 08.03.2010

Sarah Hoyer | As of: 11/19/2014