Copyright 2019 - Halbach und Braun Maschinenfabrik GmbH & Co

Terms & Conditions

Terms & Conditions of Halbach & Braun GmbH & Co.

I

GENERAL

1.

All offers, contracts, deliveries and services, including consulting services, are subject

exclusively to the following terms and conditions. Any differing customer terms

of purchase are hereby expressly rejected. We shall recognise such differing customer terms

only insofar as they are not in conflict with our terms. Differing agreements are valid only

when we have confirmed them in writing. Our silence regarding customer terms of

purchase is not to be considered recognition of or consent to such terms.

2.

By placing an order and accepting the goods we have delivered, the customer confirms his

consent to our terms and conditions.

II

OFFER AND CONCLUSION OF CONTRACT

1.

Initial offers are generally made free of charge. Further offers and drafts are in

principle provided free of charge only if a delivery contract has been concluded

with legal effect.

2.

All information, illustrations, drawings, technical data, weight, dimensions and specifications

contained in brochures, catalogues, circular letters, price lists or in documents

connected with the offer are non-binding unless expressly indicated as being

binding.

3.

We hold exclusive rights of ownership and copyright regarding all cost estimates, drawings

and other documents presented to the customer. Such materials must not be made

available to any third party without our written consent. We in turn

undertake to make any plans and or drawings that the customer designates as confidential

available to a third party only with the customer’s consent.

4.

Obvious mistakes in printing, obvoius miscalculation, typing- or calculation-errors

are not binding on us and do not establish any grounds for claiming execution

subject to such data or damage compensation.

5.

All offers are non-binding. A contract is established only when we have confirmed it in

writing. In the case of spare parts, this confirmation shall be considered issued in good

time if it is provided at the same time as billing and delivery. Any oral agreements are

null and void. All amendments or supplements to the contract shall be

valid only when confirmed in writing. The same applies to all oral, telephone or written

declarations by our representatives and agents.

III

DELIVERY

1.

The scope of our delivery is determined by our written confirmation of order.

2.

We reserve the right to carry out alterations to construction and weights, as well as

modifications and improvements regarding their construction, the materials

used and their production, provided these changes are made in the context of technical

progress and do not cause any impairments to the usefulness of the delivered

item.

IV

PRICES

1.

Our prices apply, unless otherwise expressly agreed, for delivery ex delivering works. Costs

of packing, any assembly costs and value added tax at the rate applicable on the

date of delivery are charged additionally.

2.

We reserve the right to adjust prices in the event of any change to the basis for

calculating deliveries and services provided after a period of four

months has expired since the contract was signed. If the agreed prices in total

rise significantly higher than the increase in the cost of living,

the customer shall be entitled to withdraw from the contract by issuing

an immediate written declaration. In the case of part deliveries, the

right of withdrawal shall apply only to the outstanding part of the delivery.

3.

All ancillary charges, public levies and any newly applicable taxes, freight charges

or increases thereto that directly or indirectly affect and increase the

price of the delivery shall be borne by the customer unless otherwise regulated by

compulsory statutory requirements.

V

PAYMENT

Payment shall be made according to the terms indicated in our confirmation of order and

subject to the following provisions:

1.

Unless otherwise agreed, the invoice amount is payable net within thirty (30) days of

invoice date. Assembly and repair costs, costs of product information and seminar

fees are payable net immediately.

2.

If the due date of payment is exceeded, we are entitled to charge default interest for

the time of default at a rate equivalent to the applicable bank interest rates for

overdraft credit, but at least at a rate 3%-points above the basic rate of interest

according to Section 247 German Civil Code (BGB). Punctuality of payment

shall be determined according to the time the remitted amount is credited to our bank

account or when cash payment is received.

3.

Bills of exchange shall be accepted only by special arrangement and only in lieu

of payment and if they can be discounted. The value date for the payment is

the day on which we can dispose of the value in question. Bill stamp duty,

discount charges and collection fees shall be borne by the customer. These are always

to be paid in cash immediately.

4.

Retention of payments or set-offs against any customer counterclaims shall be

admissible only if the counterclaims in question have been expressly recognised

by us in writing or have been established in law.

5.

In the event of the customer being in default of payment, we may withhold further

deliveries or demand prior payment for outstanding deliveries. If the

customer fails to comply with our terms of payment or in the event of circumstances

that come to our attention after a contract has been agreed and that appear

to reduce the customer’s solvency situation, all our claims, including those from

other contracts, shall become due with immediate effect, irrespective of

the term of any bills of exchange accepted. We are moreover also entitled to make

our performance of outstanding deliveries and services subject to the

customer providing prior payment or adequate security and, once

a suitable period for late payment has expired, to withdraw from the contract in

part or in full and/or demand compensation for damages thereby incurred.

We are furthermore entitled in such cases to prohibit the customer from

making further sale of the delivered items and, notwithstanding

the above rights, to demand return, at the customer’s cost,

of all items supplied subject to retention of title.

6.

Halbach & Braun Industrieanlagen GmbH & Co. is entitled to assign part or all of its

claims from the entire business relationship with the customer. Any exclusion

of this right to assign claims is expressly not agreed (section

399 BGB – German Civil Code). The customer waives unilateral prohibition

of our right to cede our claims.

7.

We maintain an account for the customer. Irrespective of the point in time at which

individual claims have arisen, payments made shall be booked first of all against costs,

then against interest, then against the part of the main claim that is not secured

by a retention of title or in some other way and, finally, against the secured

main claim. This shall also apply if payment amounts were booked

differently on the account card. The same applies for payments through

which bills or cheques from certain contracts are cashed.

8.

No discount deduction can be made as long as Halbach & Braun Industrieanlagen GmbH & Co.

has older and outstanding claims against the customer.

9.

If we have allowed payment in instalments, all claims shall become due immediately if

one due instalment is not paid.

10.

Our agents and representatives are authorised to accept payments only when they can

present a written power of attorney to that effect.

VI

TIME OF DELIVERY

1.

Delivery times we indicate are to be considered approximations. If a fixed delivery time

or a precisely defined delivery period has been agreed without reservation and with

binding effect, the following shall apply: The delivery time commences on

the day final confirmation of order is issued, but not before all technical and

commercial details of the order have been completely clarified and not before

all documents, permits, licenses to be provided by the customer have been received

or before any agreed deposit has been paid. The delivery period is considered

duly fulfilled when the delivery item has left the delivering plant or

readiness to deliver has been indicated to the customer before the delivery period

has expired.

2.

Delivery hindrances that can be attributed to force majeure entitle us to extend the

delivery period until such time as the hindrance has been removed

and a suitable start-up period allowed; we shall in such circumstances also

be entitled to withdraw from the contract in part or in full for the part not

yet executed. Force majeure shall also includes all circumstances that render

delivery difficult or impossible for us, in particular military mobilisation, war, blockades,

export or import prohibitions, strikes, lockouts, other disturbances to production,

fire, transport disturbances or shortages in some essential raw materials, ancillaries,

operational or construction materials. This shall also apply if the events of force

majeure or their equivalents affect our sub-contractors or upstream suppliers. The

aforementioned events and circumstances shall also not be considered our responsibility

if they arise during an already existing delay. In important cases, we shall notify

the customer of the start and end of such hindrances as early as possible. The customer

can demand a declaration from us as to whether we wish to withdraw from the contract or

still execute the delivery within a suitable period. If we do not provide the declaration

within a suitable period, the customer can withdraw from the contract.

3.

If force majeure occurs on the part of the customer or similar events for which he is not

responsible, the customer shall then not be obliged to receive the material duringthe period

of this hindrance.

4.

If the customer incurs damages due to a delay resulting from some occurrence for which

a sub-supplier is responsible, the customer shall then be entitled, with exclusion of all

further claims, to demand compensation for the delay. This compensation shall be equivalent

to at most 5% of the value of the portion of the entire delivery that could not be used on

time or in full accordance with the contract as a result of the delay. This restriction of liability

shall not apply to losses incurred due to damage to life, limb or health, or for damage caused

by malice aforethought or gross negligence on our part or the part of our legal representatives

or our vicarious agents.

5.

If a delivery is delayed at the request of the customer, the customer shall be charged, commencing

from a date one month after we have notified the customer of our delivery readiness, the

costs arising from storage of the items in question, which in the case of storage in our works

shall be at least 2% of the invoice amount for each month of storage. We are furthermore

entitled to use the delivery items for some other purpose after a suitable period has expired, and

later to deliver to the ordering party with a corresponding extended delivery period.

6.

Our compliance with the delivery period is subject to the customer fulfilling his obligations

from the contract. Claims by the customer for further damage compensation, for non-fulfilment

or for delayed delivery are expressly excluded.

VII

SHIPPING, TRANSFER OF RISK

1.

Risk is transferred to the customer, including in the case of partial deliveries, at the time the

goods are shipped from our delivering plant. We shall when requested by the customer

insure the goods at the customer’s cost against theft, breakage, transport, fire and water

damage and other insurable risks.

2.

Goods ready for delivery are to be accepted immediately. If delivery is delayed due to circumstances

for which the customer is responsible, the risk shall be transferred to the customer from the

day the customer is advised of delivery readiness. Section VI, number 5 shall also apply

accordingly. Halbach & Braun Industrieanlagen GmbH & Co. is obliged to take out the

insurance that the customer requests at the customer’s cost.

3.

Delivered items are to be accepted by the customer even if they have certain insignificant

defects. This shall apply notwithstanding the rights under section X. Partial deliveries are

permitted.

VIII ACCEPTANCE

Inspections and acceptance take place in all cases in our delivering plant, unless otherwise expressly

agreed. Any costs of employing an expert for this purpose shall be borne by the customer. If the

customer fails to accept or inspect the delivery goods or unreasonably delays or waives acceptance

or inspection, we shall be entitled to deliver the items in question without acceptance or store them

at the customer’s cost and risk. In this case, the goods shall be considered delivered and accepted.

IX

RETENTION OF TITLE – extended form of retention of title

1.

All delivered goods shall remain our property (reserved goods) until complete satisfaction

of all our claims, irrespective of the legal basis, in particular also our current payment

balance claim. This shall also apply when payments are made in settlement of specially

designated claims. This also applies if any one or all of our claims have been included in a current

invoice and the account has been balanced and accepted. Our claim to the sales price shall

not be considered fulfilled if the customer undertakes payments in cash, by cheque or bank

transfer, while on the other hand making Halbach & Braun Industrieanlagen GmbH & Co. issue

a draft to cover the cash, cheque or transfer amount and any additional costs (so-called

check-draft coverage). Such practice shall be considered due payment only when the bill has

been cashed by the customer and Halbach & Braun Industrieanlagen GmbH & Co. is

accordingly permanently released from endorser’s liability; the retention of title shall

accordingly continue to apply for these goods.

2.

Any reworking or processing of the delivered goods by the customer is undertaken only on our

behalf, but with no obligations for us arising as a result, and with exclusion of the right to

acquire as property pursuant to section 950 BGB. We shall then become the joint owner

of the new object thereby produced to the extent of the invoice value of our goods

in relation to the invoice value of the processed or reworked item, which shall then serve

as reserved goods to secure our claims.

3.

If our reserved goods are combined or mixed by the customer with other items that do not

belong to us, we shall be due sole ownership of the resulting item if the objects we deliver can

be considered the main component in the resulting item. If our property is not

to be considered the main component in the resulting item, we shall acquire joint ownership

of the new item to the extent that the invoice value of our reserved goods stands in relation

to the invoice value of the other materials used.

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4.

If our ownership expires through such combining or mixing, the customer here and

now assigns to us the ownership or joint ownership rights due to the customer in

relation to the new item to the extent of the invoice value of our reserved goods. The

joint ownership rights arising as a result shall be considered reserved

goods in the sense of these provisions. The customer shall safeguard these rights

free of charge on our behalf.

5.

The following applies for the period of our retention of title:

a)

The customer is entitled to combine and use the reserved goods in the context

of his normal business operations. The customer may undertake any other disposal

of the goods delivered (such as sale, rental, pledge, provision as security or

collateral, etc.) only with our prior express permission. A reseller is here and

now permitted to sell the reserved goods only as part of his normal business

dealings and subject to his normal terms of business and as long as he

is not in default of payment. The customer shall notify us in writing without

delay of any third-party claims or interference in ownership of the goods.

Resellers are entitled to sell the reserved goods in the

context of regular and usual business dealings subject to their normal terms of

business. This shall apply as long as the customer is not in default and when the

customer in turn reserves the ownership right to the goods. Notwithstanding the

above, this entitlement is granted subject to the condition that claims from

the resale pursuant to 5 c) to 5 i) are ceded to us.

b)

During the term of the retention of title, the goods are to be insured by the customer

at our request against all normal risks and subject to the condition that all rights

arising from this insurance are ceded to us.

c)

The customer’s claims from resale of the reserved goods are ceded to us here and

now. These shall serve to secure our claims to the same extent as the reserved

goods. Bills or cheques that are deposited by the customer’s customer here and

now become our property. Delivery of these payment items to us shall be

undertaken in that the customer keeps the corresponding papers in safe custody

on our behalf free of charge.

d)

If the customer sells the reserved goods together with other goods that the customer

did not purchase from us, the claim from this resale shall be ceded to us only to

the amount of our invoice value of the reserved goods sold. In the case of

sale of goods to which we have joint ownership pursuant to numbers 2 to 4,

the customer’s claim shall be ceded to the amount of our joint

ownership.

e)

If the customer uses the reserved goods to fulfil some work contract or work and

services agreement, then numbers 5 a) to d) and 5 f) to i) shall apply for claims

from this contract accordingly.

f)

The customer is entitled to collect claims from the resale according to numbers

5 a), d) and e) until we rescind this right, which we can do at any time. We shall make

use of this right of rescission only if one of the cases indicated in section Vl,

umber 5 arises.

g)

The customer is under no circumstances entitled to cede the claim to some

other party. The customer must at our request notify his customers immediately

of this assignment to us – unless we provide this notification ourselves – and

to provide to us all information and documents necessary for collecting the claim.

h)

If the value of the existing securities exceeds the existing claims in total by more than 20%,

we shall be obliged, when requested by the purchaser, to release securities of our

own choice.

i)

If the retention of title or the assignment of claims is found to be void or ineffective

in law in the country where the relevant goods are located, a form of security

corresponding to the retention of title or cession of claim in that country shall

be considered agreed. If the customer’s cooperation is also required in this

regard, the customer shall then take all measures that are necessary for

securing and maintaining our rights.

j)

We must be notified immediately of any pledges or confiscations or other

mpairments to our rights by some third party; any necessary costs of

intervention shall in every case be borne by the customer.

k)

In the event of the customer discontinuing payments or applying for insolvency, we

shall be entitled, while exercising our reservation of title, to immediately withdraw

our products and file claim for damages, without any need for the procedure pursuant

to section 326 BGB.

l)

The customer has the specific duty of maintaining the delivery item in a good

and technically functioning condition during the period of the retention of title and to

carry out any necessary repairs at his own cost without delay. The customer

here and now assigns to us any insurance claims he has covering the

delivered items. Insurance policies and premium receipts are to be presented to

us on request. If the purchaser fails to fulfil this obligation, we shall be entitled

to take out suitable insurance cover at the customer’s cost.

X

WARRANTY

1.

The warranty period is for one year from the date of delivery or, if acceptance is required,

from the time of acceptance.

2.

The delivered items are to be inspected carefully immediately after delivery to the

customer or to the third party designated by the customer or when assembly work

we have performed has been completed. With regard to obvious faults or other defects

that would have been evident if an immediate, careful inspection was carried out,

the delivered goods are considered approved by the customer if we have not

received a written notification of defects within seven working days after delivery

or completion of our assembly work. With respect to other faults, the items

are considered approved by the customer if notification of defect has not been provided

to us within seven working days of the fault becoming apparent.

If the fault should have been noticed by the customer at some earlier time in the course

of normal use of the item, this earlier time shall be the time when the defect

notification period commences.

3.

The customer must provide us with an opportunity to have the reported fault examined

on site by our own personnel or by some agent. If the customer does not provide

us with this opportunity of confirming the fault, all claims in relation to the fault shall

expire.

4.

In the case of material defects being found in the delivered items, we shall be obliged

and entitled first of all to improve the delivered item or provide replacement delivery

according to our own discretion, which shall be exercised within a suitable period.

We must be given adequate time and opportunity to carry out improvements

and undertake replacement deliveries that appear necessary to us according

to our own discretion. Replaced parts become our property. If our subsequent performance

fails, i.e. in the event of the improvement or replacement delivery being

impossible, unreasonable, or if we refuse or cause an unreasonable delay in providing

the improvement or replacement delivery, the customer shall be entitled

to withdraw from the contract or reduce the purchase price accordingly.

5.

Of the direct costs arising from such improvements or replacement delivery, we shall

bear – when the complaint has been shown to be justified – the costs of the replacement

item and appropriate costs of dismantling and installation work. Other costs shall

be borne by the customer. Replaced parts become our property.

6.

The same guarantee is provided for replacement parts or for the improvement as is provided

for the original delivered item.

7.

If a defect is due to some failure for which we are responsible, the customer can demand

damage compensation provided the conditions under XII have been fulfilled.

8.

In the case of faults being found in parts provided by other manufacturers that we are

unable to remedy for licensing or material reasons, we shall, according

to our own discretion, exercise our guarantee claims against the manufacturers and

suppliers on behalf of the customer or cede such claims to the customer. Warranty

claims can be raised against us in the event of such faults subject

to the general conditions and according to the provisions of these general terms of

delivery only if the legal action to assert the aforementioned claims against the

manufacturers and suppliers has failed or is unlikely to succeed, for example,

due to insolvency. During the period of the legal dispute, the statute of limitations

is suspended for the customer’s warranty claims against us in this regard.

9.

The warranty claim shall not apply if the customer has, without our consent, altered

the delivery item or has it altered by a third party and such alteration has rendered

our remedial work impossible or unreasonably difficult. In every case, the customer

shall bear the additional costs of removing the fault caused by this subsequent

alteration.

10.

We do not accept any warranty for faults or damage that was caused by some

unsuitability of materials delivered by the customer or some construction

that the customer specified, or by the customer’s failure to observe operating

instructions, unsuitable or unprofessional use or storage, incorrect assembly or start

up by the customer or a third party, unauthorised repair attempts or modifications, natural

wear, incorrect or negligent treatment, excessive strain, unsuitable supplies and

substitute materials, faulty construction work, chemical, electrochemical or electrical

influences, unless these can be shown to be due to some fault on our

part.

11.

We also do not provide warranty for any disadvantages that result from the delivered item

being subject to certain demands regarding which we had not been or had only

been insufficiently informed.

12.

Deliveries of used items that may be agreed with the customer in some individual case

are made without any warranty for material defects.

XI

RIGHT OF WITHDRAWAL ON THE PART

OF HALBACH & BRAUN INDUSTRIEANLAGEN GmbH & Co.

1.

The contract shall be amended appropriately in the case of unforeseeable events

in the sense of section VI, number 2 of these terms that significantly change the

commercial meaning or the content of the performance to be provided, or that

have a significant effect on the operations of Halbach & Braun Industrieanlagen

GmbH & Co. If such amendments are not commercially sustainable, we reserve the

right to withdraw from the contract in part or in full. We also reserve this right of

withdrawal when it subsequently emerges that fulfilment of the contract has become

impossible.

2.

In the event of our wishing to exercise this right of withdrawal, we shall immediately

notify the customer accordingly when the consequences of the event become

known, including in situations when an extension of the delivery period was initially agreed

with the customer.

3.

The customer has no claims for damages arising from such withdrawal.

XII

DAMAGE COMPENSATION CLAIMS

1.

The seller’s liability for damage compensation, irrespective of the legal basis,

in particular due to the impossibility, delay, faulty or incorrect delivery, breach

of contract, violation of obligations in negotiating the contract and unlawful acts

is, in relationto the question of fault, restricted pursuant to this section XII.

2.

In the case of material or financial damage caused by simple negligence, we are liable

only in the case of violation of an essential contractual obligation. Essential

contractual obligations are those whose fulfilment represents a central feature of

the contract and on which the customer can depend, in particular the obligation to

provide punctual delivery and installation of the ordered item, its freedom from faults

that impair its functionality or usefulness to more than an insignificant degree, as well

as obligations to provide consulting, protection and due care such that the customer is

able to use the delivered object in accordance with the contract or that serve to protect

the customer’s personnel against damage to life or limb or the customer’s

property from significant damage.

3.

If we are liable to provide indemnity pursuant to section XII, number 2, due to the merits

of the case, this liability shall be limited to damage that was foreseen at the time the

contract was concluded as a possible consequence of a breach of contract or that we

should have foreseen if we had exercised normal due caution. Indirect damage

and consequential damage that result from faults in the delivered object

are furthermore subject to compensation only if such damage can

typically be anticipated in the event of proper use of the delivered object.

4.

The above exclusions and restrictions of liability shall also apply to the same extent in

favour of the executive bodies, legal representatives, employees and other vicarious

agents of the seller.

5.

If the seller provides technical information or acts as a consultant and when this

information or consulting is not covered by the scope of performance contractually

agreed, it shall be provided free of charge and with exclusion of all liability.

6.

The restrictions in this section XII do not cover our liability due to malice aforethought

or gross negligence, for guaranteed characteristics, for damage to life damage to

the life, limb or health, or according to the German product liability act

(Produkthaftungsgesetz).

XIII

PLACE OF PERFORMANCE AND LEGAL VENUE

Place of performance and legal venue is Hattingen, Germany. Halbach & Braun

Industrieanlagen GmbH & Co. is also entitled to take legal action at the place of

the customer’s headquarters. The relationship between the parties is regulated

exclusively according to the law of the Federal Republic of Germany.

XIV

INVALIDITY OF CLAUSES

If any individual clauses in the above are or become void or ineffective in law, this

shall not affect the validity of the other provisions. The parties shall in such a case replace

the void or ineffective provision with a regulation that comes as close as possible to

the commercial effect of the contract with due account being taken of the interests of the

two parties.

XV

GENERAL APPLICATION

These terms form the basis for all subsequent contracts, even if they are not separately

agreed.

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