General Terms and Conditions (03.12.2018)

1 General information

1.1

The General Terms and Conditions of Sale for FLOHE Group deliveries (FLOHE GCS) apply to all contracts in which the company Flohe GmbH & Co. KG or the companies FLOHE Berg GmbH, FLOHE Cable Technologies GmbH, Flohe Hochstromtechnik GmbH and FLOHE Steel GmbH act as the Seller of goods or services and the other Contracting Party acts as the Purchaser.

With respect to the company FLOHE Fouilleret SAS (France), the FLOHE GCS apply to all contracts in which FLOHE Fouilleret SAS acts as the Seller and the other Contracting Party acts as the Purchaser and has its registered office outside the French Republic.

With respect to the company FLOHE LINKWEL Power Pvt. Ltd. (India), the FLOHE GCS shall apply to all contracts in which FLOHE LINKWEL Power Pvt. Ltd. acts as the Seller and the other Contracting Party acts as the Purchaser and has its registered office outside the Republic of India.

1.2

The FLOHE GCS apply exclusively to legal transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (Bundesgesetzbuch, BGB). We do not accept any terms and conditions of the Purchaser that deviate from the FLOHE GCS unless we have expressly agreed to their validity in writing.

1.3

This version of the FLOHE GCS is valid from 03.12.2018. It replaces all previous General Terms and Conditions of Sale.

2. Offer, content of contract

Our offers are non-binding unless they are referred to as binding. A contract is only concluded with our written order confirmation. We deliver and perform in accordance with our written order confirmation and the FLOHE GCS.

Changes to the contract require text form as a minimum (Section 126b of the BGB) and only become effective with our confirmation.

The contract remains effective even if individual parts of the contract are not effective

The Purchaser may not transfer rights from the contract.

3. Rescission from the contract, force majeure

The Purchaser shall only have a right of rescission if it has put us in default by granting us a reasonable grace period. We can use this right if the Purchaser does not meet its payment obligations towards us or third parties or if, after conclusion of the contract, the Purchaser’s economic situation significantly deteriorates, particularly if enforcement measures or insolvency proceedings are carried out or initiated.

In the event of force majeure and other unavoidable events, we may restrict delivery for the duration of the effects or withdraw from the contract in whole or in part. Such events and force majeure particularly include labour disputes, operational disruptions, urgent repairs in the manufacturer’s works, official measures of any kind, the defective extraction or delayed or restricted supply of raw materials and supplies, electricity, water and possibly also gas shortages, lack of means of transport, traffic difficulties, war, riots and similar events as well as any other unavoidable event.

4. Delivery, determination of quantities, goods inspection and acceptance

4.1

Unless otherwise agreed, the stated delivery periods refer to ‘ex works’ (EXW Incoterms 2010) and shall apply after the timely fulfilment of all of the Purchaser’s obligations to cooperate and provide information. Delivery shall be deemed to have been made as soon as we have indicated that the purchased item has been made available for collection by the Purchaser.

4.2

EXW Incoterms 2010 shall apply to the shipment of the purchased goods, however, regardless of this, we shall be entitled to select the forwarding agent or carrier. Delivery costs shall be borne by the Purchaser. If the type of shipment is not prescribed, we do not guarantee the cheapest mode of shipment.

4.3

If the loading or carriage of the goods is delayed by the Purchaser following a request for collection, we shall be entitled to store the goods at the expense and risk of the Purchaser, to take all measures deemed necessary to preserve them and to invoice the Purchaser for them without prejudice to its continuing right and obligation to collect the goods. The same shall apply if goods notified as ready for dispatch are not collected within three days of notification of readiness for dispatch. Further rights to compensation for damages on our part remain unaffected.

4.4

DIN standards apply to compliance with the specified dimensions. In all other respects, we indicate dimensions and weight in our offers and order confirmations to the best of our knowledge. An excess or shortfall in delivery of up to 10% in comparison with the order quantity is permitted for series production. Partial deliveries are permitted. The weight and delivery quantities stated in our delivery notes and invoices shall be used as a basis for settlement.

4.5

EXW Incoterms 2010 shall apply to the transfer of risk. We shall not be obliged to insure the delivery item for transport to the Purchaser without a separate agreement. This shall also apply if we have chosen the forwarding agent or carrier.

4.6

Agreed acceptance of goods under special test conditions shall be carried out in our works. The Purchaser shall bear the costs for acceptance officers. If the Purchaser fails to carry out this inspection, the goods shall be deemed to have been delivered in accordance with the contract when they leave our works. Otherwise, Section 377 of the German Commercial Code (Handelsgesetzbuch, HGB) applies.

5. Payment

5.1

All prices quoted are net prices excluding taxes, customs duties and other fees as well as packaging and transport costs.

5.2

We only grant discounts on agreement, however, the condition for this is always the settlement of our other receivables that are due. Receipt of payment shall be determine the retention of discount periods.

5.3

Offsetting and the exercise of a right of lien and right of retention against us is only permitted with due receivables that have been recognised by us or are established by law.

6. Retention of title

Goods shall remain our property until all present and future claims arising from the business relationship with the Purchaser have been settled. The Purchaser is obliged to store the goods separately. The Purchaser shall carry out any works or processing on our behalf without any obligations arising for us from this. The Purchaser shall assign to us any rights that arise from combining or mixing the reserved goods with other items on receipt of the reserved goods in advance.

The Purchaser shall safely store the products or the whole item for us. The Purchaser may only sell the reserved goods and the items resulting from their work or processing under similar retention of title and may not impair our retention of title rights by otherwise disposing of the goods (e.g. pledging, transfer by way of security).

Access by third parties to reserved goods must be reported to us immediately. The Purchaser shall assign to us all receivables to which it is entitled from resale or on other legal grounds in advance. If the reserved goods are sold together with other items that we do not own or if they are included in works deliveries, the assignment shall only apply to the amount of the invoice value relating to the reserved goods. The Purchaser is authorised to collect assigned receivables. It shall notify debtors of the assignment on our request. If the value of this security exceeds our receivables by more than 20%, we shall release securities of our choosing at the Purchaser’s request.

7. Late payment and loan expiry

The Purchaser shall default in payment without a reminder if it culpably fails to make a payment as agreed. In the event of default in payment, all of our receivables shall become due and payable. The Purchaser may no longer sell the goods owned or co-owned by us and is obliged to provide us with security. The same shall apply if we have reasonable doubts as to the creditworthiness of the Purchaser. Notwithstanding other claims due to default in payment, we shall be entitled to interest on our receivables from the due date at a rate of 9 percentage points above the base interest rate. The Purchaser shall grant us a lien on the material provided to us for the execution of the order and on claims replacing it to secure all present and future claims arising from the business relationship with it. If the Purchaser is in default of payment or if a loan expires, we shall be entitled to dispose of the pledged material at the market price (London Metal Exchange listing). In the event of no listing, this shall be at the average German market price, by private contract on the day of the default of payment or expiration of the loan.

8. Rights to tools, moulds and models

The Purchaser shall not acquire any rights to tools, moulds and models by paying a share of the costs.

9. Third-party property rights

If delivery infringes third-party property rights on delivery, based on drawings or other information provided by the Purchaser, the Purchaser shall indemnify us against all claims. This includes internal and external costs of legal defence.

10. Warranty

10.1

There is a material defect if the goods deviate more than insignificantly from the agreed specification at the time risk transfers. The contractually agreed quality of the goods shall be exclusively governed by the explicit agreements made.

Liability for material defects is also excluded if the deviation from the contractually agreed quality is due to improper handling of the goods by the Purchaser.

10.2

We accept liability for a specific purpose or suitability only if and insofar as we have explicitly agreed to this in writing. Otherwise, the risk of suitability and use lies with the Purchaser.

Agreed specifications and agreed intended use shall not constitute a guarantee; the assumption of a guarantee requires explicit written agreement.

10.3

The Purchaser is obliged to give us the opportunity to inspect the goods for which a complaint has been raised immediately after a defect has been notified. On request, the goods in question or a sample shall be sent to us at our expense.

10.4

In the event of culpably unjustified notice of defects, we shall be entitled to demand compensation from the Purchaser for all damages caused by this. However, these damages particularly do not include any internal and external inspection costs, shipping costs as well as internal and external costs of legal defence.

10.5

In the event of a material defect, we shall provide supplementary performance in accordance with the applicable legal provisions, provided that we shall, at our discretion, either remedy the defect or deliver non-defective goods. If we do not successfully carry out supplementary performance within a reasonable period of time, the Purchaser shall be entitled to either to reduce the purchase price or to withdraw from the contract following the unsuccessful expiry of a grace period set for this purpose. The place of performance for supplementary performance shall be our place of business.

11. Liability

In the event of damage caused by us or our vicarious agents, we shall be liable for intent and gross negligence in accordance with legal provisions. The same applies to damage caused by negligence resulting from injury to life, limb or health. In the event of damage to property and financial loss caused by negligence, we and our vicarious agents shall only be liable in the event of a breach of a material contractual obligation, however this is limited to the amount of foreseeable damage typical of the contract at the time of conclusion of the contract. Material contractual obligations where the fulfilment of such obligations characterise the contract and on which the customer may rely.

12. Export, import. Customs and foreign trade law

12.1

Compliance with all licensing obligations and notifications concerning the goods with respect to (re-)exports or imports as well as customs regulations is the sole responsibility of the Purchaser. When obtaining any approvals and issuing notifications concerning the goods with respect to (re-)exports or imports as well as customs regulations, we shall act exclusively to fulfil our own obligations. In this respect, the Purchaser is not entitled to any claim, performance claim or claim for damages against us

12.2

If the goods are collected by a Purchaser based outside the Federal Republic of Germany or one of its representatives and if the goods are transported to a foreign territory, the Purchaser is obliged to provide us with the export certificate required for tax purposes without undue delay. Otherwise, the Purchaser is obliged to pay the value added tax rate applicable to deliveries within the Federal Republic of Germany

12.3

In the event of deliveries within the EU, the Purchaser is obliged to provide us with proof of shipment which corresponds with the respective VAT obligations immediately after delivery.

13. Applicable law, place of performance, place of jurisdiction

13.1

German law applies. The provisions of the Vienna UN Convention on Contracts for the International Sale of Goods of 11/04/1980 shall not apply.

13.2

Incoterms 2010 shall apply in addition to and subordinate to individual agreements and the FLOHE GCS.

13.3

Should a provision be or become void, the remaining provisions shall remain valid.

13.4

The place of performance for delivery shall always be the place from which the delivery is made. The place of performance for all obligations arising from delivery relationships with registered traders and legal entities under public law shall be our registered office.

13.5

The place of jurisdiction for these delivery relationships shall be Dortmund. We are also entitled to bring forward action at the Purchaser’s place of business.