General sales and delivery conditions for
Phönix Armaturen-Werke Bregel GmbH

1. General
   
   1. All deliveries and services are subject to these Conditions, including any special contractual agreements. Purchasing specifications of the Purchaser, which may differ from these Conditions, are not considered part of these Conditions through order acceptance.
      A contract is established upon issuance of a written purchase order by Supplier, unless a special agreement has been made.
       
   2. The Supplier reserves the right to claim property rights and intellectual property rights for models, cost estimates, drawings and information in material and immaterial form – including such in electronic form. Third parties should not be allowed access to above-mentioned information.
      The Supplier is obliged, only upon agreement of Purchaser to supply information and documents, which Purchaser marks as confidential, to third parties. 
    
2. Price and Payment
   
   1. In absence of a special agreement, the prices are valid ex works including loading of goods at factory, but not including packing and unloading. The value added tax (VAT) in the amount specified by law is added to the price additionally.
       
   2. In absence of a special agreement, payment is to be made with no deductions to the account of the Supplier as follows:
      within 14 days from the date of the invoice with 2% discount, or
      within 30 days from the date of the invoice net amount.
       
   3. The right of the Purchaser to withhold payments or to charge counterclaims is only allowed when the counterclaims are indisputable or have been established as final and absolute. 
3. Delivery Period, Delay of Delivery
   
   1. The delivery period is established in the agreement between the parties. The adherence of the Supplier hereto requires that all commercial and technical questions between the contractual parties have been answered and that the Purchaser's obligations, such as provision of the required official certifications or approval or a down payment have been fulfilled. Should this not be the case, then the delivery period will lengthen accordingly. This is not applicable if the Supplier is responsible the delay.
       
   2. The adherence to the delivery date is subject to the Supplier itself receiving correct and timely deliveries.
       
   3. The delivery date is adhered to when the goods have either left Supplier's factory or readiness for shipment has been announced within the delivery period. Should an inspection take place – barring any justified rejection of an inspection – then the date of the inspection is decisive, or alternatively the notification of inspection readiness.
       
   4. Should the shipment or the inspection of the goods be delayed due to reasons for which the Purchaser is responsible, then, starting one month after Supplier's notification of readiness for shipment and/or inspection, Purchaser will be charged for the costs incurred by this delay.
       
   5. Should the non-adherence to the delivery period be caused by Acts of God (force majeure), strikes or other such events which are not within the jurisdiction of the Supplier, then the delivery period will be lengthened accordingly. The Supplier will notify the Purchaser as soon as possible as to the beginning and end of such events.
       
   6. The Purchaser can withdraw from the contract with setting any deadline should it prove impossible for the Supplier to provide the entire goods and services before the end of the risk. In addition, the Purchaser can withdraw from the contract when it proves impossible to deliver one part of the purchase order and the Purchaser has a legitimate interest in refusing a partial delivery. Should this not be the case, the Purchaser is required to pay the cost of the partial shipment. The same thing applies to inability of the Supplier. In addition to this, paragraph VII.2 is applicable.
      Should impossibility or inability arise during default of acceptance or if the Purchaser is solely or mostly responsible for the situation, then the Purchaser is responsible for service in return.
       
   7. Should the Supplier be in default, and this delay results in damages for the Purchaser, then the Purchaser has the right to demand a fixed compensation for the delay in delivery. This amounts to 0.5% for each full week of the delay, but no more than maximum 5% of the value of the total delivery, which due to the delay cannot be used on time or not as contractually agreed upon.
       
   8. Should the Purchaser – after taking into consideration the legal exceptions – allow the Supplier, who is in default, an appropriate deadline to provide services, and should this deadline not be observed, then the Purchaser is legally allowed to withdraw.
       
   9. Further claims due to delivery delay are dealt with exclusively in paragraph VII.2 of these Conditions. 
    
4. Passing of Risk, Inspection
   
   1. The Purchaser is responsible for any risk once the goods have left the factory. This includes partial deliveries and/or when the Supplier has provided other services such as shipment or delivery and assembly. If an inspection should take place, then this decisive for the passing of risk. The inspection must be promptly carried out on the inspection date. Alternatively, the inspection can be carried out after the Supplier has announced the inspection readiness. The Purchaser is not allowed to refuse the inspection due to an insignificant defect.
       
   2. Should the shipment and/or inspection be delayed or not occur due to circumstances beyond the control of the Supplier, then, upon notification of readiness for shipment and/or inspection, the Purchaser is responsible for the risk. The Supplier is obliged, at Purchaser's expense, to purchase the necessary insurance as determined by the Purchaser.
       
   3. Partial deliveries are allowed, as far as this is acceptable for the Purchaser.
    
5. Reservation of Title
   
   1. The Supplier reserves the right of title to the delivered goods until all claims arising from the business relationship with the Supplier have been settled.
       
   2. The right of title extends to all new products resulting from processing of the supplied goods. The processing is carried out for the Supplier as manufacturer. Should processing, assembly or mixing occur with products that are not our own, the Supplier becomes co-owner of the goods in relation to the invoice value of the delivered goods to the invoice value of the other materials.
       
   3. As long as the Purchaser is ready and able to settle in due form any claims with the Supplier, then the Purchaser is allowed to use property or co-property of the Supplier in the course of business. The following applies:
      
      
      1. Should the Purchaser allow deferred payment from his customer, then he must retain his right of title to the goods. Without such retention, the Purchaser is not authorized to have the goods at his disposal.
          
      2. All claims, including any bills of exchange and checks, resulting from the sale of the goods subject to retention of title are assigned at this time to the Supplier to ensure fulfilment of claims arising from the business relationship and due the Supplier. Upon the sale of goods of which the Supplier is co-owner, the assignment of claims is limited to the debt claims equal to the co-ownership share of the Supplier. Should any processing occur within the scope of a service contract, the compensation claims pro rata the amount of the invoice for the processed goods subject to retention of title are assigned at this time to the Supplier. The Purchaser is only authorized to sell or otherwise use such goods when he is certain that claims resulting from these will be assigned to the Supplier.
          
      3. Should the assigned claim be part of a current account, the Purchaser shall at this time assign the Supplier a part of the balance equal to the amount of this claim (including the relevant part of the end balance) from the current account. Should interim balances be drawn and as per agreement the amount carried forward, then, according to the provisions above, the claims contained in the interim balance shall be treated as assigned to Supplier for the next balance.
          
      4. The Purchaser is authorized to collect claims assigned to Supplier until Supplier revokes this right.
       
   4. As long as the Supplier has the right of title to the goods, the Purchaser shall, should it be in his power to do so, treat such goods with care and keep them safe as well as perform regular inspection, maintenance and preservation work at his cost. During the time period where the goods are subject to reservation of title, the Purchaser is not allowed to pawn, pledge or assign such goods as collateral. Should third parties gain access to the goods, i.e. by way of pawning, pledge as collateral or confiscation, or if the goods are damaged or destroyed, then the Supplier must be immediately notified in writing or per fax. The Purchaser must pay all costs necessary in order to recover and restore the goods, should these costs not be borne by third parties.
       
   5. Should the Purchaser violate his responsibility to maintain and treat the goods with care, or be in default with payment of secured claims, then the Supplier reserves the right to take back the goods. The taking back of goods is only considered a withdrawal from contract when the Supplier provides declaration of such in written form. After taking back the goods, the Supplier is entitled to utilize the goods, and the profit shall be credited against Purchaser's debts after deduction of any costs occurring due to utilization. The same thing applies for other cases of behavior contrary to contract from Purchaser.
       
   6. Should the realizable value of the securities exceed the claims to be secured by more than 10 %, the Supplier will, upon request of the Purchaser, release securities of his choice.
       
   7. Should the reservation of title be legally limited or not allowed in the country of the Purchaser, then the rights as listed above are limited to the respective legally permissible amount.
       
   8. The Supplier is authorized to insure the goods to be delivered against theft, fire, water and other damages at the Purchaser's cost, if the Purchaser has not already verifiably taken out such policies.
       
   9. The opening of insolvency proceedings allows the Supplier the right to withdraw from the contract and demand immediate return of the delivered goods.
    
6. Guarantee
   For material defects and defects of title of the delivery, the Supplier – excluding other claims and subject to paragraph VII – provides the following guarantee:
   • Material defects:
     
     1. All such parts determined to be defective due to a circumstance which occurred before the passing of risk shall be repaired free of charge or replaced, as deemed necessary by the Supplier. Defects must be immediately reported in writing to the Supplier. Replaced parts are the property of the Supplier.
         
     2. In order to proceed with any repair work or replacement as deemed necessary by the Supplier, the Purchaser, after having contacted the Supplier, must allow the necessary time and opportunity for such work. Should this not occur, the Supplier is not liable for any consequences resulting there from. Only in urgent cases where operational safety is in danger and/or to prevent an unreasonably large damage does the Purchaser, after having contacted the Supplier, have the right to either perform the repair work himself or have a third party perform such work. The Purchaser then has the right to demand from Supplier the necessary compensation for such efforts.
         
     3. Should the repair work or replacement prove to be justified, then the Supplier shall pay the resulting costs. This means the cost of the replacement part including shipment as well as a sufficient amount for the disassembly and reassembly work. Furthermore, should this justly be applicable to the individual case, the necessary costs of the service technician and workers.
         
     4. The Purchaser has by law a right to withdraw from the contract when the Supplier – after taking into consideration the legal exceptions – fails to provide a solution before the end of an appropriate deadline set by Purchaser due to defects for repair work or replacement. Should only a minor defect exist, then the Purchaser is solely allowed to lower the purchase price. The right to lower the purchase price is otherwise not applicable.
         
     5. No guarantee will be provided in the following cases:
        Inappropriate or improper usage, incorrect assembly and/or commissioning by Purchaser or third parties, wear and tear, incorrect or negligent handling, incorrect service maintenance, inappropriate operating material, defective construction work, inappropriate building ground, not contractually agreed upon usage of appropriate chemical, electrical-chemical or electrical effects – provided that the Supplier not be responsible for these.
         
     6. Should the Purchaser or a third party improperly perform repair work, the Supplier is not liable for any consequences resulting from this. The same thing applies for any modifications made to the goods without prior approval from Supplier.
      
   • Defects of Title
     
     7. Should the usage of the goods lead to a breach of the industrial property rights or copyright in inland, the Supplier shall, at his own cost, obtain the right for Purchaser to further use the goods or modify the goods in a way acceptable to Purchaser and in such way that the breach of the industrial property rights no longer exists.
        If such action is not possible within economically reasonable conditions or within an appropriate amount of time, then the Purchaser has the right to withdraw from the contract. Within the named requirements the Supplier also has the right to withdraw from the contract.
        Furthermore, the Supplier shall indemnify the Purchaser from any indisputable or legal claims from the holder of the property rights.
         
     8. The obligations of the Supplier named in paragraph VI.7 are, subject to the provisions of paragraph VII.2 in case of breach of industrial property right or copyright, conclusive. They exist only when:
        
        • the Purchaser informs the Supplier immediately of any claims of property or copyright breaches;
           
        • the Purchaser supports the Supplier to an appropriate extent in the defense against claims and/or allows the Supplier to perform modifications according to paragraph VI.7;
           
        • the Purchaser allows the Supplier the right to use all defense strategies including out-of-court settlements;
           
        • the defects of title are not due to any statements of the Purchaser; and
           
        • the defects of title were not caused by an unauthorized modification of the goods or non-contractual usage of the goods by the Purchaser. 
    
7. Liability
   
   1. When the goods cannot be used as contractually agreed due to the fault of the Supplier as a result of neglected or defective construction, recommendations or advice either before or after conclusion of the contract or breach of other secondary contractual obligations – especially operating and maintenance instructions for the goods – then, excluding other claims of the Purchaser, the provisions of paragraph VI and VII.2 respectively apply.
       
   2. The Supplier shall be held liable for or damages – due to whatever defects of title – not directly resulting from the goods only in the following cases:
      
      • deliberate act
         
      • an act of gross negligence on the part of the owner, bodies or manager;
         
      • negligent injury to life, body and health;
         
      • defects that were maliciously concealed or whose absence was guaranteed;
         
      • defects of the goods in as much as the product liability law is held responsible for personal or collateral damages for objects used for personal usage.
        In case of breach of major contractual obligations, the Supplier is held liable even for gross negligence of non-managerial personal and in cases of minor negligence, whereby in the last case the liability is limited to contractually typical, sensibly foreseeable damage.
        Further claims are excluded.
         
8. Statute of Limitations
   All claims of the Purchaser – due to whatever defects of title – expire in 12 months. For deliberate acts or malicious behaviour or claims according to the product liability law, the statutory periods of limitation apply.
    
9. Usage of Software
   Should software be contained in the goods delivered, the Purchaser shall be granted partial rights to use such software including the documentation thereto. This shall be used for the certain goods in question. Usage of the software on more than one system is prohibited.
   
   The Purchaser is only allowed to copy, revise, translate or convert the software from the object code into the source code to the legally permitted extent (§§ 69 a ff. UrhG). The Purchaser is obligated not to remove or modify without prior approval from the Supplier any manufacturer's information, especially copyright marks.
   
   All other rights concerning the software and the documentation including any copies thereof belong to the Supplier and/or the software supplier. The distribution of sublicenses is prohibited.
    
10. Applicable Law, Place of Jurisdiction
    
    1. For all legal relations between the Supplier and the Purchaser there exists exclusively for the legal relations of domestic parties the governing law of the Federal Republic of Germany.
        
    2. The place of jurisdiction is the competent court responsible for the area of the company's registered office. The Supplier reserves the right to file suit at the company headquarters of the Purchaser.
        
    
    In the event of any dispute or diversity of interpretation, the German version of these Conditions shall prevail.