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Terms of sale, delivery and payment

of Menz & Könecke GmbH, 41372 Niederkrüchten, Germany

(Currently valid version)

1 General

a) Menz & Könecke GmbH executes contracts exclusively in accordance with the following terms and conditions of sale, delivery and payment. We do not recognise any conflicting general terms and conditions of the customer. Our terms and conditions of sale, delivery and payment also apply if we carry out a delivery without reservation in the knowledge of conflicting or deviating terms and conditions of the customer.

b) All agreements made by us for the purpose of executing a contract must be recorded in writing in the purchase contract; this also applies in particular to deviating verbal subsidiary agreements made prior to the conclusion of the contract.

c) Our terms and conditions of sale, delivery and payment shall also apply to all future transactions.

2. Offers

a) Our offers are always subject to confirmation.

b) Documents enclosed with an offer, such as illustrations, drawings, brochures, catalogues or other comparable documents, are each produced and determined to the best of our ability, but remain only approximately authoritative. If we have produced the documents ourselves, all property rights and other rights, in particular the copyright, shall remain with us; if the documents originate from a third company, the customer must observe its property rights and other rights, in particular its copyright.

3. Conclusion of contract

a) The presentation of goods in the online shop does not constitute a binding application for the conclusion of a purchase contract.

b) Rather, it is a non-binding invitation to order goods in the online shop.

c) By clicking the button "Order now with obligation to pay", you submit a binding offer to purchase (§ 145 BGB).

After receipt of the purchase offer, you will receive an automatically generated e-mail with which we confirm that we have received your order (confirmation of receipt). This confirmation of receipt does not constitute acceptance of your purchase offer. A contract is not yet concluded by the confirmation of receipt.

d) A purchase contract for the goods is only concluded when we expressly declare acceptance of the purchase offer or when we dispatch the goods to you - without prior express declaration of acceptance.

4 Prices and payment

a) Our prices are net prices plus the applicable value added tax; insofar as the prices are dependent on quantity, confirmed and agreed prices shall only apply upon acceptance of the confirmed and agreed quantities.

b) In the absence of any express agreement to the contrary, our invoices are due and payable net without any deductions within 14 days of the invoice date.

c) If a payment date is exceeded, we shall be entitled to charge interest on the due date at a rate of 3% above the respective discount rate of the Deutsche Bundesbank, provided that the customer is a registered trader, a legal entity under public law or a special fund under public law. In cases of default in payment - i.e. after a reminder or the occurrence of an event replacing the reminder - we are entitled to demand default interest in the amount of 3% above the respective discount rate of the Deutsche Bundesbank or to claim the default damage actually incurred by us, which may also consist of higher default interest. The customer shall be entitled to prove to the contrary that we have incurred a lesser loss.

d) Payments must be made by cheque, bank giro or postal cheque transfer. If payment is made by bank transfer, payment shall only be deemed to have been made when the amount has been credited to our account. Cheques and bills of exchange shall be accepted on account of payment; payment shall only be deemed to have been made when they have been honoured. Bills of exchange are only accepted without guarantee for correct presentation and protest. Bank, discount and collection charges shall always be borne by the customer and are due immediately.

e) The customer shall only be entitled to set-off rights if counterclaims are legally established, undisputed or recognised by us. The customer also has no right of retention due to disputed counterclaims, unless he is neither a registered trader, nor a legal entity under public law, nor a special fund under public law - in these cases, the customer has the possibility of exercising a right of retention insofar as his counterclaim arises from the same contractual relationship.

f) If there is a significant deterioration in the financial circumstances of the customer which jeopardises our claim to payment for goods already delivered, the customer is obliged, at our request, to first pay the purchase price for a future order which has not yet been executed before this order is executed. By way of example, a significant deterioration in the customer's financial circumstances and thus a threat to our claim to payment of the purchase price shall be deemed to be an application for an increase in composition or bankruptcy proceedings against the customer's assets, the customer's cessation of payments, changes in the customer's legal circumstances, the customer's failure to honour bills of exchange or cheques on time, the customer exceeding payment deadlines by more than 60 days. The customer shall be entitled to prove to the contrary that, despite the occurrence of such circumstances in the individual case, a significant deterioration of the customer's assets has not occurred and that our claim to payment of the purchase price is therefore not at risk.

5 Delivery

a) The place of delivery is our place of business, delivery to a place requires a special agreement; however, in particular in the case of acceptance of a certain quantity, we are entitled to make partial deliveries in these cases and it is solely our responsibility to choose the transport route and the means of transport.

b) The agreement of a binding delivery period must be in writing; correct and timely delivery by our upstream suppliers is always reserved.

c) Unforeseeable operational disruptions for which we are not responsible and which occur or become known after conclusion of the contract, for example strikes, lockouts, war, riots, shortages of raw materials, damage to machinery, official measures, and in general all cases which we cannot influence even with the most careful conduct, extend delivery periods for the duration of their existence, at the longest by 6 months. If an extension of 6 months has occurred, the customer has the right to withdraw from the contract, which must be exercised by registered letter and must be linked to a further reasonable period within which we still have the right to deliver. Claims for damages by the customer are excluded in these cases.

d) The customer may request us in writing 3 weeks after a non-binding deadline has been exceeded to deliver within a reasonable period of time which is specified precisely; this period of time is then a binding deadline. After the expiry of binding delivery periods, the customer shall only be entitled to withdraw from the contract if he has previously set us a reasonable grace period, combined with the threat that he will withdraw after the expiry of this grace period or claim damages for non-performance.

e) Before the expiry of subsequent delivery periods, claims for damages by the customer due to delayed delivery are excluded. Claims for damages due to delayed delivery are otherwise limited to a maximum of 5 % of the value of the delivery, whereby a lump-sum compensation for delay amounting to 1 % of the value of the delivery can be demanded for each full week of delay. If we are liable for damages due to non-fulfilment because we were in default of delivery and the customer claims damages due to non-fulfilment after setting a deadline with a threat of rejection, we shall only be liable for compensation for such damages as were foreseeable at the time of conclusion of the contract, as well as for compensation for direct damages; in this case, our liability shall also be limited to 5% of the value of the total delivery. The above limitations of liability shall not apply if we, our legal representatives, our executive employees, our representatives or our vicarious agents are guilty of intent or gross negligence.

f) If the shipping risk is insured in the event of a corresponding express agreement, this shall always be at the expense and for the account of the customer.

The risk shall pass to the customer as soon as a consignment has left our warehouse or as soon as a consignment has been handed over to the persons carrying out the transport, the latter irrespective of who bears the freight costs. If the goods are ready for dispatch and the dispatch is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for dispatch. The above provisions on the transfer of risk shall also apply to shipments within the same location and to shipments carried out by our vehicles or our personnel.

6. Retention of title

a) We retain title to our goods until receipt of all payments arising from the business relationship. The transfer of ownership by way of security and the pledging of the goods subject to retention of title in favour of third parties without our consent is excluded; the customer is obliged to inform us immediately of any pledging of the goods subject to retention of title by third parties. In the event that the customer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to demand the return of the goods delivered by us without this constituting a withdrawal from the contract. After the return of the goods, we shall be entitled to realise them; we shall realise the goods in the best possible way and offset the realisation proceeds - less reasonable realisation costs - against the customer's liability.

b) The customer is authorised to sell the goods subject to retention of title in his ordinary course of business; however, this authorisation shall end if the customer behaves unlawfully, in particular in the event of default in payment.

c) Claims which the customer acquires from a resale of the goods subject to retention of title in his proper business dealings are already now assigned to us by the customer in the amount of the value of our goods subject to retention of title as security for all our claims from the business relationship. The customer's entitlement to sell the reserved goods is dependent on the transfer of the resulting claim to us in accordance with the preceding sentence 1. The pledging of this claim in favour of third parties or any assignment of these claims to third parties is excluded without our consent. The customer is obliged to inform us immediately of any seizure by third parties. We shall not collect the assigned claims provided that the customer meets his payment obligations; however, the customer for his part is obliged to notify us of the third-party debtors at any time upon request and, if applicable, also to notify them of the assignment.

d) The customer is obliged to treat the reserved goods with care; in particular, he is obliged to sufficiently insure them at his own expense against fire, water and theft at their nominal value.

e) If the value of the securities existing for us exceeds our claims by more than 20%, we shall be obliged to release securities at the request of a third party adversely affected by our excess security; the choice of the securities to be released shall be ours.

7 Warranty

a) The warranty period is 24 months; notices of defects must be submitted to us in writing, specifying the individual defects complained of.

b) In the case of obvious defects, we can only consider a notice of defect if it is received by us in writing within 14 days of receipt of the goods at the latest; in the case of hidden defects, we can only consider a notice of defect if it is received by us in writing within 14 days of discovery of the defect at the latest. If the customer is a registered trader, a legal entity under public law or a special fund under public law, the aforementioned deadlines are maximum deadlines which do not release the customer from compliance with the relevant statutory provisions (Sections 377, 378 of the German Commercial Code (HGB)) and the obligations to inspect and give notice of defects owed thereunder; in particular, the customer must inspect the goods without delay and, if necessary, give notice of defects without delay.

c) We shall not be bound by any warranty or guarantee commitments of third-party manufacturers or upstream suppliers that go beyond our terms and conditions of sale, delivery and payment, insofar as these do not apply, or any warranty or guarantee commitments of third-party manufacturers or upstream suppliers that go beyond the statutory provisions.

d) In the event of the existence of a defect, we shall provide warranty in the form of rectification of the defect or in the form of delivery of defect-free replacement goods. If we are not prepared or not in a position to remedy the defect or deliver a replacement, in particular if this is delayed beyond a reasonable period of time for reasons for which we are responsible, or if the remedy of the defect or the delivery of a replacement fails in any other way, the customer shall be entitled to demand the cancellation of the purchase contract; the customer shall not be entitled to reduce the purchase price. Unless otherwise stated below, further claims of the customer, irrespective of the legal grounds, are excluded. We are therefore not liable for damage that has not occurred to the delivery item itself. We are therefore also not liable for loss of profit or other financial losses of the customer.

The above exemption from liability shall not apply if we, our legal representatives, our representatives and executive employees, as well as our vicarious agents are guilty of intent or gross negligence in connection with the occurrence of the damage. Furthermore, it shall not apply if the damage is caused by initial incapacity, by impossibility for which we are responsible or by breaches of material contractual obligations. Finally, it shall not apply if the customer asserts claims for damages due to the absence of a warranted quality and a warranty of quality covering the risk of consequential damage pursuant to §§ 463; 480 para. 2 BGB (German Civil Code) existed and the damage incurred is due to its absence.

e) The warranty does not cover the elimination of defects caused by normal wear and tear, external influences and operating errors. The warranty shall lapse as soon as the customer modifies the delivery or components thereof himself or has them modified by third parties without our consent, unless in such cases the customer provides full proof that the defects in question have not been caused either in whole or in part by such interventions and that the rectification of defects is not impeded by such interventions.

8. Other contractual and non-contractual liability

We shall owe damages from the point of view of culpa in contrahendo, damages from positive breach of contract and non-contractual damages only with regard to damages foreseeable and direct at the time of conclusion of the contract. Such claims for damages are limited in amount to the value of the object of purchase delivered by us. We shall not be liable for damage that has not occurred to the object of delivery itself. We are also not liable for loss of profit of the customer.

The aforementioned limitations of liability do not apply if we, our statutory representatives, our representatives and executives as well as our vicarious agents are guilty of intent or gross negligence; furthermore, they do not apply in the event of initial incapacity, impossibility for which we are responsible and breaches of essential contractual obligations. Finally, they do not apply to claims under. §§ 1, 4 of the Product Liability Act.

9 Applicable law, place of performance and jurisdiction

a) The legal relations between the customer and us are exclusively subject to the law of the Federal Republic of Germany.

b) Unless otherwise agreed, the place of performance is Niederkrüchten.

c) If the customer is a registered trader, a legal entity under public law or a special fund under public law, the place of jurisdiction, including for claims based on bills of exchange and cheques, is Nettetal; however, we are also entitled to sue the customer at the court of his place of residence.