General Terms and Conditions of Sale, Delivery and Payment ASIKOS Strahlmittel GmbH

§ 1 Scope

The following terms and conditions apply to companies, legal entities under public law, and public special assets.
The deliveries and services of ASIKOS Strahlmittel GmbH (including all peripheral services) are provided exclusively on the following conditions, which become a part of the contract no later than upon acceptance of the goods by the purchaser. We hereby object to general terms and conditions of the purchaser. They shall not be effective even if ASIKOS Strahlmittel GmbH does not object to them again upon conclusion of a contract. Divergent agreements shall only be effective if ASIKOS Strahlmittel GmbH confirms them in writing.
These terms and conditions also apply to sales on the basis of a trade clause, in particular but not limited to Incoterms. In the case of sales on the basis of Incoterms, the Incoterms 2000 shall prevail. Trade clauses shall be applicable only to the extent they do not conflict with these terms and conditions or specific agreements.

§ 2 Offers, conclusion of a contract

Offers are not binding and subject to prior sale.
The contract becomes legally binding only after ASIKOS Strahlmittel GmbH provides confirmation in writing or by phone.
The contract materializes no later than upon delivery of the goods at the place of performance.

§ 3 Prices

In the absence of an express price agreement, the prices of ASIKOS Strahlmittel GmbH generally valid on the day of delivery shall apply.
The prices of ASIKOS Strahlmittel GmbH increase correspondingly when the cost prices of ASIKOS Strahlmittel GmbH increase. This applies to the entire period between conclusion and end of contract, i.e., when costs (customs duties, freight charges, surcharges, taxes. motorway use fees, etc.) increase or are newly introduced between conclusion of contract and day of delivery or if such an event occurs at a subsequent time and has retroactive effect. At the request of the purchaser, ASIKOS Strahlmittel GmbH shall furnish proof of any changes in the aforesaid costs.
The aforesaid applies particularly to long-term fixed contracts and regular-delivery contracts.
The stated prices are net prices to place of performance, unless other terms of delivery have been agreed.

§ 4 Place of performance, delivery, delivery periods, liability for delayed delivery, passing of risk, packing and packaging

The purchaser determines the place of performance. This place at the same time is the place of fulfilment of the debt lying in render.
ASIKOS Strahlmittel GmbH is entitled to make partial deliveries.
Information about delivery periods refers to the time of delivery at the place of performance.
The delivery period begins upon acknowledgement of the order by ASIKOS Strahlmittel GmbH, however not before the purchaser has fulfilled the duties of cooperation within its sphere of responsibility required for the execution of delivery.
Delivery periods are subject to the reservation that ASIKOS Strahlmittel GmbH itself obtains the supplies in good time, unless binding delivery periods have been expressly promised by ASIKOS Strahlmittel GmbH in writing upon contract conclusion. The provisions for delivery periods apply mutatis mutandis to delivery dates.
The delivery period has been observed if ASIKOS Strahlmittel GmbH has offered the product/service to the purchaser within the period stipulated.
In the event of delayed delivery, ASIKOS Strahlmittel GmbH shall be liable according to the provisions of laws
a) if the product/service is to be provided at a precise time or within a fixed period, or
b) if due to delayed delivery for which ASIKOS Strahlmittel GmbH is responsible the purchaser has no interest in the further fulfilment of the contract, or
c) if delayed delivery is due to an intentional or grossly negligent breach of contract by ASIKOS Strahlmittel GmbH, or
d) if and insofar as the delayed delivery for which ASIKOS Strahlmittel GmbH is responsible stems from negligent breach of an essential contractual obligation (cardinal duty).
Liability for damages in the cases covered by letter d) is limited to the foreseeable damages typically arising. ASIKOS Strahlmittel GmbH shall be accountable for faults of its authorized agents or vicarious agents.If the delivery of supplies to ASIKOS Strahlmittel GmbH itself is delayed through no fault of ASIKOS Strahlmittel GmbH, the company shall not be liable for damages incurred due to the delayed delivery. Proof of an impediment to delivery can be provided in form of a pertinent declaration of the supplier of ASIKOS Strahlmittel GmbH.
For the rest, ASIKOS Strahlmittel GmbH shall be liable to provide compensation for delayed performance for every complete week of delay at a flat rate of 0.5% of the value of the delayed delivery or the delayed part of delivery, but only up to a maximum of a total 5% of this value.
The purchaser retains the right to assert further legal claims and rights.
If the purchaser is in default of acceptance or if he culpably neglects other duties of cooperation, the risk of accidental loss of, or accidental damage to, the goods passes to the purchaser at the time of such default.
If the purchaser has the option of either rescinding the contract because of delayed delivery or insisting on delivery, at the request of ASIKOS Strahlmittel GmbH he is obligated to exercise this option within a reasonable period.
ASIKOS Strahlmittel GmbH fulfils its obligations under the Packaging Ordinance by taking back transport and sales packaging at the place of fulfilment. Return takes place during the usual business hours and is limited to packing and packaging supplied by ASIKOS Strahlmittel GmbH. The costs incurred by ASIKOS Strahlmittel GmbH in fulfilling its take-back obligation shall be borne by the purchaser.

§ 5 Purchaser's duties of cooperation

Items of delivery with negligible faults shall be accepted by the purchaser without prejudice to any rights (as, for example, of a deduction from the price).
In the case of contracts involving continuing deliveries the goods shall be called off in the same grades and approximately the same monthly quantities. If the contractual quantity is exceeded by the individual call-offs, ASIKOS GmbH is entitled, but not obligated to deliver the excess amount. ASIKOS GmbH can invoice the excess amount at the prices valid upon call-off or delivery.
The purchaser must ensure that the delivery of the goods is possible to the place of performance and fulfilment designated by him. Unless explicitly stipulated otherwise, it must be possible for a 40-ton truck licensed under the road traffic regulations to obtain access to the place of performance and fulfilment on a suitable approach road.
The purchaser must ensure that a person authorized to receive the goods and countersign the delivery notes is present at the place of performance at the time of delivery.

§ 5 a. Rented silos

If ASIKOS Strahlmittel GmbH makes a rented silo available to the purchaser, a rental fee shall be paid according to the current valid price list for rented silos. Rental shall be paid from the day of delivery of the silo until the day following the day on which the purchaser has indicated to ASIKOS Strahlmittel GmbH that the silo is ready for collection again.
If ASIKOS Strahlmittel GmbH makes a rented silo available to the purchaser, the purchaser alone is responsible for the selection as well as the safety of the access road and the place of erection. The emplacement site of the silo shall be selected and prepared such that officially licensed 40-ton trucks can reach the site.
The purchaser is liable for all hazards and damages which may occur due to the use of the silo.
The purchaser is responsible for observing the applicable safety and accident prevention regulations. Currently, the following regulations must be observed: DIN 1054, DIN 4124, BGV A1, BGV A10, BGV C12, BGV D36, BGR 186 and BGR 217. Once the silo has been erected, the risk and danger of the loss or accidental destruction of and damage to the silo shall be borne by the purchaser until the silo is properly returned.
The purchaser promptly shall make a written report to ASIKOS Strahlmittel GmbH of any damage to or tampering with the silo.

§ 6 Purchaser's default in acceptance

If the purchaser is in default of acceptance or if he culpably neglects other duties of cooperation, he shall compensate ASIKOS Strahlmittel GmbH for the resultant damage, including the reimbursement of any additional expenses. This shall be without prejudice to further legal claims.

§ 7 Delivery quantity, weights

Weights will be determined by ASIKOS Strahlmittel GmbH on calibrated scales. Proof of weight shall be furnished by presenting the weighing cards or the consignment notes and/or delivery notes. The purchaser is entitled to take part in the loading and the assessing of quantities and weights. The relevant quantities are those specified for the transport units. For proof of quantity the taking-over of the goods by the purchaser is decisive.

§ 8 Force majeure

In cases of force majeure, ASIKOS Strahlmittel GmbH is entitled to postpone delivery for the duration of the disturbance, including a reasonable start-up time afterwards, or to withdraw from the contract because of the unfulfilled part. Strike, lockout, mobilization, war, blockades, export/import bans, shortage of raw materials and fuels, terrorism, fire, traffic embargoes, disruptions of operation or transport, and other circumstances are equivalent to force majeure.

If the purchaser calls on ASIKOS Strahlmittel GmbH to declare whether it will deliver or cancel, then in reference to the as yet unfulfilled part of the delivery the purchaser can cancel in the event ASIKOS Strahlmittel GmbH fails to exercise its option within a reasonable period.

§ 9 Guarantees, liability for defects, statute of limitations

Guarantees

ASIKOS Strahlmittel GmbH assumes no guarantee for the properties of the goods which it sells or for the retention by these goods of a certain property for a certain period, unless explicitly stipulated otherwise in writing in the contract.
Analytical data and/or other characteristics – including information about qualities and the suitability of the goods for a certain purpose – are non-binding values describing the average condition of the goods. The same applies to samples and specimens. Deviations on a standard commercial scale are permissible.

Liability for defects

If the object of sale exhibits a defect, ASIKOS Strahlmittel GmbH shall be obligated to remedy the defect. ASIKOS Strahlmittel GmbH can choose either to eliminate the defect or deliver a new, defect-free object.
If it chooses to eliminate the defect, ASIKOS Strahlmittel GmbH shall bear all expenses necessary to eliminate the defect, in particular but not limited to the cost of transport, labour and materials. This shall not apply in the event such expenses stem from the fact that the object of sale has been moved to a place different from the contractually stipulated place of performance.
If remedy of defects fails, the purchaser can choose to withdraw from the contract or to reduce the purchase price to a reasonable degree.
ASIKOS Strahlmittel GmbH is liable under the law
a) for damage claims of the purchaser which stem from intentional or grossly negligent breaches of contract by ASIKOS Strahlmittel GmbH;
b) for negligent breach of essential contractual obligations by ASIKOS Strahlmittel GmbH, the fulfilment of which is required to enable proper performance of the contract and where the purchaser normally can trust in their being observed.
Liability for damages in the cases covered by letter b) is limited to the typically foreseeable damage. ASIKOS Strahlmittel GmbH shall be accountable for faults of its authorized agents or vicarious agents.

Establishment of defects, requirement to give notice of defects

Claims of the purchaser arising from defects require that the purchaser has complied with the legal requirements regarding inspection and objection. The notice of defect shall be submitted promptly, in written form or by fax. In the case of defects recognizable upon delivery, the complaint is to be lodged no later than three days after the arrival of the goods at the place of performance.
The decisive point in time as regards the contractual condition of the goods is the passing of risk.
Proof of defect must be provided by samples. At the option of ASIKOS Strahlmittel GmbH an agent appointed by ASIKOS or a sworn expert must be present when samples are taken. If the complaint is justified, ASIKOS Strahlmittel GmbH will assume the cost of its agent or the expert.
All claims arising from defects shall be inapplicable if the purchaser does not give ASIKOS Strahlmittel GmbH any opportunity to examine the defect, in particular if the purchaser fails to furnish samples.
The claims arising from defects also shall be inapplicable if the goods are improperly handled.
Measures taken by ASIKOS Strahlmittel GmbH to reduce damage do not constitute an admission of defect. By entering into negotiations about a complaint, ASIKOS Strahlmittel GmbH does not waive the defence that the complaint was not made in time, is unjustified in substance or is insufficient in some other way.
Short delivery or excess delivery on a scale in accordance with commercial usage does not constitute a defect of delivery.

Statute of limitations

Claims of the purchaser arising from defects come under the statute of limitations 12 months from the passing of risk.
The statutory period of limitation in the case of recourse according to Sections 478, 479 German Civil Code remains unaffected. This period is five years from the delivery of the defective object.

§ 10 Liability, scope of liability

A liability of ASIKOS Strahlmittel GmbH extending beyond the aforesaid conditions is limited to the typically foreseeable damage in the event of negligent breach of essential contractual obligations, the fulfilment of which is required to enable proper performance of the contract, and where the purchaser normally can trust in their being observed.
For the rest, ASIKOS Strahlmittel GmbH is liable in particular for culpable injury to life or limb or health according to the provisions of the law.
Also unaffected is the mandatory liability under the German Product Liability Act.
Insofar as ASIKOS Strahlmittel GmbH is not liable on account of an exclusion of liability or has only limited liability, the exclusion of liability or the limitation of liability shall also apply to its employees, representatives and vicarious agents.

§ 11 Terms of payment

Invoices shall be paid in cash immediately after receipt of the goods without making retainers and without deducting prompt-payment discounts.
Offsetting by the purchaser against claims of ASIKOS Strahlmittel GmbH is excluded unless the counterclaim of the purchaser has been assessed in a legally binding judgement or is recognized by ASIKOS Strahlmittel GmbH.
If more than one claim exists against the purchaser, ASIKOS Strahlmittel GmbH will credit payments to account as it chooses.
The employees of ASIKOS Strahlmittel GmbH are not authorized to accept payments or to make other dispositions unless they have been issued written authority.

§ 12 Intercompany pricing

ASIKOS Strahlmittel GmbH is entitled to offset against all claims – no matter for what legal reason – to which it is entitled from the purchaser. Offsetting is permissible against all claims – no matter for what legal reason – which the purchaser has against ASIKOS Strahlmittel GmbH or against a company with which the latter is directly or indirectly affiliated (Section 18 German Stock Corporation Act).
A list of the companies with which ASIKOS is directly or indirectly affiliated will be sent to the purchaser at the purchaser's request.

§ 13 Retention of title, security

ASIKOS Strahlmittel GmbH retains title to the object of sale until all present and future claims arising from the business relation are met.
Allocation of individual claims to a current account or a balance does not abrogate the reservation of title.
If in arrears on payment, upon request of ASIKOS Strahlmittel GmbH the purchaser is obligated to surrender the reserved goods. He already authorizes ASIKOS Strahlmittel GmbH now to enter the storage place of the goods subject to reservation and to take them away.
If the goods subject to reservation are combined, mixed or blended with other items not belonging to ASIKOS Strahlmittel GmbH, ASIKOS Strahlmittel GmbH acquires a co-ownership according to the proportion of the value of the goods subject to reservation to the value of the other items. If the purchaser acquires sole ownership by combining, mixing or blending, already now he transfers to ASIKOS Strahlmittel GmbH a co-ownership in the proportion of the value of the goods subject to reservation to the value of the other goods. The purchaser shall hold the objects in safe custody free of charge in such cases.
The purchaser is entitled to sell the goods subject to reservation in the course of normal business. Already now he assigns to ASIKOS Strahlmittel GmbH the claims arising from the resale in the amount of the sum total of the invoice, including value-added tax, with all subsidiary rights; ASIKOS Strahlmittel GmbH accepts this assignment. If the resold goods are co-owned by ASIKOS Strahlmittel GmbH, the assignment of the claim applies to the amount corresponding to the share of ASIKOS' co-ownership.
The purchaser is not entitled to pledge the goods subject to reservation, to make them over as security, or to use them in any other way as security.
ASIKOS Strahlmittel GmbH authorizes the purchaser to collect the assigned receivables. ASIKOS Strahlmittel GmbH can revoke this authorization at any time. ASIKOS Strahlmittel GmbH will not make use of its right of revocation and its collection entitlement as long as the purchaser satisfies his payment obligations, also via-á-vis third parties. On request, the purchaser shall name the debtors of the assigned receivables to ASIKOS Strahlmittel GmbH and inform the third parties of the assignment. ASIKOS Strahlmittel GmbH also is authorized to inform the debtors of the assignment itself.
The right of onward sale or use of the goods subject to reservation and the authorization to collect the assigned receivables lapse upon cessation of payment, a request for the commencement of, or commencement of, insolvency proceedings or composition proceedings in or out of court. The same shall apply if a cheque or bill is protested and the purchaser is the drawee.
The purchaser is obligated to inform ASIKOS Strahlmittel GmbH without delay of third-party enforcement proceedings affecting the goods subject to reservation or the assigned receivables and, without delay, hand over the documents necessary for lodging an objection.
ASIKOS Strahlmittel GmbH is obligated to transfer back collateral security provided to it insofar as the value of the collateral security lastingly exceeds the claims of ASIKOS Strahlmittel GmbH by more than 10%.
If reservation of title or assignment are not effective under the law within whose sphere of operation the goods are located, then in that area collateral security corresponding to the reservation of title or the assignment shall be deemed agreed. If the cooperation of the purchaser is required for this purpose, he shall take all measures necessary to establish and maintain this right.

§ 14 No third-party privilege, prohibition of assignment

No third-party rights are established by the contract. Assignment by the purchaser of rights and claims arising from the contract requires the written consent of ASIKOS Strahlmittel GmbH.

§ 15 Jurisdiction, applicable law

The legal domicile for both parties to the contract is Dinslaken.
All legal relations between ASIKOS Strahlmittel GmbH and the purchaser are governed by German substantive law. Application of the provisions of the Hague Sales Convention, the Vienna Sales Law and the UN Sales Law is excluded.

§ 16 Data processing

ASIKOS Strahlmittel GmbH is entitled to process purchaser data received in connection with the business relationship observing the German Federal Data Protection Act.

§ 17 Partial invalidity

Should individual parts or clauses of these terms and conditions be or become invalid, the remaining terms and conditions retain their validity.

As at 03/2009

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