Terms of Delivery

Terms of Delivery and Payment of ProForm GmbH
(last updated: 01/2013)

I. General
1.Our deliveries, performances, and offers will explicitly be effected on the basis of the conditions hereinafter set forth. These conditions shall also apply to all present and future business relationships even if not explicitly agreed upon again. These conditions shall be deemed accepted on acceptance of the goods or performance at the latest. Any conflicting confirmations by the buyer with reference to his general terms and conditions are hereby rejected. Any deviations from these conditions shall only be valid if confirmed in writing by us.

2. Please note that we process and store the buyer's data relating to the business transactions carried out with him in accordance with the German Data Protection Act (Bundesdatenschutzgesetz).

II. Offer and Conclusion of Contract
1. Unless otherwise explicitly indicated, our offers are subject to confirmation. Samples and specimen shall be considered non-binding supplementary information only. Any conclusions and agreements shall only become binding upon our written order confirmation or upon shipment by us; in the latter case the invoice shall replace the order confirmation.

2. The specification "as supplied previously", common in order confirmations, shall in all cases only refer to execution and not to the price. Only the article name shall be relevant for the identification of the product. The additional quotation of the customer's article names is not binding.

3. Our oral and written advisory service as to the application of the products is - also with regard to possible protective rights of third parties - non-binding and shall not exempt the buyer from the obligation to check the products himself for their suitability for the intended processes and purposes.

III. Prices
1. Unless otherwise agreed, our prices are quoted ex works or warehouse and do not include packaging and freight costs as well as value added tax at the rate applicable on the day of delivery.

2. In case of changes in the cost factors before delivery, we reserve the right to increase the price agreed with the buyer for the goods not yet delivered in the corresponding amount, yet only if and to the extent we generally increase prices and only if we are not in default of delivery. Unless we have to make partial deliveries, the right to increase prices shall only arise four months after conclusion of the contract.

3. Our prices applicable on the day of delivery shall apply to orders for which no prices have been agreed. The buyer may withdraw from the contract if the price applicable on the day of delivery is more than 10% higher than the price that was applicable on the date of order.

4. Unless otherwise explicitly agreed, sales prices as well as any offers and calculations shall be in Euro.

IV. Terms of Payment
1. If there is no agreement to the contrary on the mode of payment referring to an individual contract, the following shall apply: Within 10 days with 2% cash discount, calculated in each case on the basis of the value of the goods (not taking into account costs for packaging, fright, and the like), within 30 days net cash from the date of invoice, unless in price lists there are different terms of payment relating to a special scheme. On the costs of tools as well as on orders with a net value of goods under EUR 300,-, no cash discount will be granted. The above cash discount will only be granted if any and all payment obligations from previous deliveries have been fulfilled completely. Payment must be effected regardless of receipt of the goods and possible notices of defects. Place of performance for payments shall be Porta Westfalica.

2. The offsetting of payments shall only be admissible if the claim asserted by the buyer is based on an undisputed or a legally effectively established counter claim or a counter claim ready for decision.

3. In the event the agreed payment deadline is not observed, you will, without prior notice, be in default. The buyer will also be in default if he does not effect payment upon an official reminder effected after the purchase price becomes due.

4. Bills of exchange and cheques will only be taken for collection on account of payment; we will not be liable for timely presentation and raising of objections. If a bill of exchange is accepted, discount and accrued costs will be invoiced; acceptance will be subject to the right to at any time demand payment in cash against the return of the paper. In the case of payment by cheques, a cash discount can only be granted if the cheques are received by us within the deadline. In the case of the acceptance of bills of exchange, no cash discount will be granted.

5. We shall be entitled to offset all of our claims against the buyer, against all claims that the buyer has against us from deliveries or other causes in law except from tort.

V. Retention of Title and Further Securities
1. We shall retain title in the goods delivered until payment of the purchase price and any and all claims from the business relationship have been effected. The inclusion of individual claims into a open invoice or balancing and its recognition shall not lift the retention of title. The retention of title shall also affect the respective balance claim. We shall retain title in the goods until complete payment of any and all, and including also future claims against the buyer from the business relationship has been effected.

2. The processing and transformation of goods subject to retention of title delivered by us will be done under exclusion of acquisition of title under section 950 German Civil Code (BGB) and always on our order, yet without any responsibility arising for us. The processed goods serve as a security for us only to the amount of the value of the goods subject to retention of title. If the buyer processes them together with other goods which do not belong to us, we shall have joint ownership in the new product in proportion of its value (value of invoice) with the consequence that it is now a good subject to retention of title within the meaning of these conditions.

3. The buyer shall be entitled to process and sell the goods subject to retention of title in the course of his routine business.

4. With his order or acceptance of an offer the buyer shall assign to us on account of a security all sums due to him including claims to balances from current accounts agreements, a development and processing, or connection of the goods delivered by us: This shall apply in the same way to the buyer's claims from other causes in law (insurance, tort etc.) with regard to the goods subject to retention of title: The individual assignments shall be limited in their amounts to the delivery value of the goods delivered according to our invoices. If the buyer's customer has effectively excluded the assignment of claims against him, then the buyer and we shall internally be in a situation as if the above-mentioned claims assigned to us in advance, whatever their nature, had been assigned to us in an effective manner. We shall be authorised by the buyer to raise a claim in his name for our account once the buyer is no longer entitled to collect the sum in his own name under below provision.

5. We revocably authorise the buyer to collect the claims assigned to us for his account in his own name. Once the buyer is in default with one of his obligations to us, the buyer, on our request, will disclose the assignment and provide us with the necessary information and documents. We shall also be entitled to report the assignment directly to the buyer's debtors and to request them to effect payment to us.

6. The delivered goods may not be pledged nor assigned by way of a security without our approval. In the case of third parties' accessing the goods subject to retention of title, the buyer expressly agrees to inform such party of our title in the goods, to inform us immediately, and to provide us with any support necessary to preserve our rights.

7. If the buyer acts contrary to the terms of the contract - including but not limited to a payment default - we shall be entitled to assert our retention of title and to demand the immediate return of the goods subject to retention of title and to gain immediate possession of it ourselves or through authorised parties or, as the case may be, to demand the assignment of claims of return of the buyer against third parties. Assertion of retention of title does not include a withdrawal from the contract.

8. If the total value of the securities existing to our benefit exceeds our claims by 20 %, we shall be obliged to in so far release securities of our choice on the buyer's request.

9. The buyer shall be obliged to insure the goods subject to retention of title adequately against fire and theft. Claims against the insurance company arising out of an occurrence of damage will be assigned to us with any order or acceptance of an offer in the amount of the value of the goods subject to retention of title.

VI. Terms for Delivery and Performance
1. Place of performance for deliveries shall be Porta Westfalica or the registered office of the works or warehouse commissioned with the delivery. The terms for delivery and performance shall be deemed complied with when, by the day of their expiry, the ordered item has left the works, readiness to dispatch has been reported, and/or performance has been effected.

2. The term for delivery and performance shall be reasonably renewed in the event of measures taken in the context of industrial action, including but not limited to strikes, lockouts, as well as the occurrence of obstacles due to force majeure, in so far as such obstacles demonstrably have an important influence on the completion or handover of the delivery item or the execution of performance.

3.The buyer may withdraw from the contract without fixing a deadline if performance as a whole becomes finally impossible for us before the passing of the risk. The buyer may also withdraw from the contract if on an order the execution of a part of the delivery becomes impossible and he has a justified interest in rejecting partial delivery. If that is not the case, the buyer shall be obliged to pay the contractually agreed price allotted to the partial delivery. The same applies to inability to perform on our side. In other respects, section IX, no 2 shall apply. If impossibility or inability to perform occurs during a period of default of acceptance or if the buyer is solely or predominantly responsible for those circumstances, he will still be obliged to perform.

4. If the buyer - under consideration of the exemptions provided for by law - after the due date fixes a reasonable time limit for us to deliver and if this time limit is not adhered to, the buyer shall be entitled to withdraw from the contract within the realm of statutory provisions. Any further claims for default of delivery shall only be derived from section IX, no 2.

5. When there has been notification of the goods' readiness to be dispatched, the buyer shall have the goods delivered immediately on expiry of the delivery period; In case of a failure to do so, we shall be entitled to dispatch them on our own choice or store them at the buyer's cost and risk at our own discretion; The same shall apply if dispatch can not be effected for reasons beyond our control. Upon notice of the goods' readiness to be dispatched, the goods shall be deemed delivered and may be invoiced.

6. The manner of conveyance, the means of transport, the route of transport, as well as the kind and quantity of the required means of protection and the choice of forwarding agent or carrier and packaging are at our choice. These choices will be made at our own discretion and with due care under the exclusion of any and all liability. The goods will only be insured upon the buyer's explicit request and at his cost.

7. Delivery in instalments shall be admissible. We shall be allowed to deliver surplus or short quantities of 10 %, in the case of custom-made products of 20 %, which will be invoiced.

VII. Passing of the Risk
1. Unless agreed otherwise, the risk shall in any event pass to the buyer upon handing the goods over to the forwarding agent or carrier, or upon their removal from the works or warehouse at the latest.

2. Any objections for incomplete, defective, or wrong deliveries shall be addressed to us in writing immediately within 10 days of arrival of the goods. Otherwise the deliveries shall be deemed accepted.

VIII. Claims for Defects
We shall give a warranty of fitness for use of and title in deliveries under the exclusion of any further claims - subject to section IX - as follows:

Defects in Fitness for Use
1. All parts or performances which show a defect in their fitness for use during the period of limitation are to be either subsequently improved or replaced at our discretion and without costs if the cause of said defect already existed at the time of the passing of the risk.

2. When there is a notice of defects, the buyer shall be entitled to withhold payments in a reasonable amount in relation to the occurred defect in fitness for use. The buyer shall only be entitled to withhold payments if a notice of defects is made whose adequateness is without doubt. If a notice of defects is unfounded, we shall be entitled to charge the buyer with the costs incurred by us for checking the goods.

3. First we shall be granted the opportunity of subsequent improvement within a reasonable period of time. The orderer shall only be entitled to withdraw from the contract or reduce remuneration - notwithstanding possible claims for damages under section IX - if subsequent improvement is unsuccessful or rejected by us.

4. No claims for defects will arise in the case of only minor deviations from the agreed properties, of only minor impairment of the fitness for a purpose, of natural wear and tear, or of damage which occurred after the passing of the risk as a consequence of incorrect or negligent use, excessive operational demands, or inappropriate equipment.

5. The buyer shall not be entitled to claims for necessary expenses incurred for the purpose of subsequent improvement, including but not limited to costs of transport as well as infrastructure use, labour, and material costs.

6. The buyer shall only have recourse claims against us in accordance with section 478 German Civil Code (BGB) (Recourse by Company) in so far as the buyer has not entered into an agreement with his customer that goes beyond statutory claims for defects. As for the amount of the recourse claims against us under section 478 subsection 2 German Civil Code, it shall apply that recourse is excluded in so far as expenses are higher because the delivery item was subsequently transported to a different place than the buyer's place of business, unless such transport is in line with its intended use.

Defects in Title
1. If we are to deliver according to drawings, models, samples, or using parts provided by the buyer, the buyer shall be responsible to ensure that this will not infringe any property rights of third parties in the country of destination of the goods. The buyer shall exempt us from any claims by third parties and pay compensation for the damage caused. If a third party prohibits us from producing or delivering the goods under reference to a property right held by him, we shall be entitled - without legal assessment - to discontinue work until the legal situation has been clarified by the buyer and the third party. If, due to the delay in continuing with the order, we cannot reasonably be expected to continue with the order, we shall be entitled to withdraw from the contract.

2. Unless agreed otherwise, we shall be obliged to only effect delivery in the country of the place of delivery free from industrial property rights and copyrights of any third party. If the use of the delivery item results in the infringement of any industrial property rights or copyrights, we will, at our expense, generally procure the buyer the right to further use the item or modify the delivery item in a way the buyer can reasonably be expected to tolerate so that said infringement of property rights no longer exists.

3. If this is not possible under economically reasonable circumstances or within a reasonable period of time, the buyer shall be entitled to withdraw from the contract. Under said conditions, we, too, shall be entitled to withdraw from the contract.

4. Moreover, we will exempt the buyer from any undisputed or legally effectively established claims by the respective holder of property rights.

5. The above obligations are final subject to section IX no 2 for infringements of property rights or copyrights.
They shall only apply if
   • the buyer immediately informs us of infringements of protective rights or copyrights which have been claimed,
   • the buyer supports us in a reasonable scope in defending ourselves against the claims which have been raised or allows us to modify the items in accordance with no 7,
   • we reserve all measures of defence including out of court settlements,
   • the defect in title is not due to an instruction or particular specification by the buyer, and
   • the infringement of rights was not caused by the buyer, in his sole authority, changing the delivery item or using it in a manner contrary to the provisions of the contract or by him otherwise being responsible for the infringement of property rights.

IX. Liability
1. In the case of slight negligence, we shall only be liable in the case of infringement of essential contractual obligations (cardinal obligations) for the foreseeable, typical of this type of contract and direct average damage considering the type of goods.

2. In all other respects, our pre-contractual, contractual and extra-contractual liability shall be limited to intent and gross negligence. This limitation of liability shall also apply in the case of fault on the part of persons employed by us in performing our contractual obligations.

3. The limitations of liability shall not apply to our liability under the German Act on Product Liability, for guaranteed properties or to damage from injury to life, body or health.

X. Limitation of Actions
1. All of the buyer's claims - for whatever cause in law - shall become statute-barred in 12 months' time.

XI. Tolerances
1. The following tolerances shall apply to holes and profiles, with the exception of products of foamed material, to the extent not otherwise stipulated in agreed DIN standards, works-standard specifications, and not elsewhere detailed otherwise (e. g. in technical terms of supply):

• For profiles, as measurable: Breadth, height, and diameter, DIN 16941-3A, very roughly;
• To fabrication lengths, tolerances in length measured at room temperature immediately after production shall apply, to profiles in accordance with DIN 16941-3 A, to coils and rolls: ± 2 %.

2. Specifications of shore-A hardness are subject to a tolerance range of ±3 for thermoplastics and ± 5 for elastomers.

Deviations customary in the trade in actual properties, weight, and colour shall not carry the entitlement to complain about the delivery. The images, measurements, and weights in our lists, technical terms of supply, works-standard specifications, offers, and order confirmations are only approximative. Any deviations in measurements, weight, quantity, and quality shall be allowed within the scope of tolerances customary in the trade or under the applicable standards. There is no warranty for compliance.

XII. Copyrights and Industrial Property Rights, Moulds, and Tools
1. We reserve any and all proprietary rights and copyrights in drawings, samples, and similar information; They must only be made available to any third party with our prior approval.

2. We claim the right to exclusive production in drafts, drawings, and tools produced by us in any event for the respective items. The passing on and copying of said documents and of the tools, their utilisation, and disclosing of their content shall be prohibited to the extent not expressly allowed. Any acts to the contrary shall carry the obligation to pay damages. All rights shall be reserved for the event a patent is granted or a utility model is registered. The buyer shall warrant that the production and delivery of items produced according to his specifications will not infringe any property rights of any third party. Moulds, stencils, and other devices shall remain our exclusive property even when costs are invoiced to the orderer.

3. When we produce or procure models, moulds, tools, and other casting devices upon the customer's request, we will invoice part of the costs for this separately. Since these pro-rata costs will not cover our expenses for drafts, production, running-in, or know-how and maintenance and repair, we shall retain exclusive title in the models and moulds as well as tools including accessories. The same shall apply to changes as well as replacement models and tools and follow-up moulds. Costs for tools, moulds etc. plus value added tax at the applicable rate will become payable on invoicing. When three years have passed since the last delivery of items produced with them, we shall not be obliged to still keep them.

XIII. Venue and Miscellaneous
1.The place of performance shall always be our place of business. The place of jurisdiction for any and all disputes shall be the place of our company seat..

2. If insolvency proceedings are instituted over the contractual partner’s assets and if this seriously endangers our claim for payment, we shall be entitled to withdraw from the contract for the part of it which has not yet been performed. Under these circumstances, the discontinuation of payment on the part of the customer shall also entitle us to withdraw from the contract.

3. German law shall be applicable exclusively. Application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 shall expressly be excluded. The present terms of delivery and payment shall only be applicable in the German version. Only the German version will become part of the contract; the English version, which is also published, is supplied for convenience purposes only.