I. General

Services and supplies performed and effected by GD-International, GDI shall be governed only by those terms and conditions set forth hereunder. Any terms and conditions deviating there from, even purchaser's terms and conditions, shall be binding on GDI only if GDI have expressly acknowledged such terms and conditions. These general terms and conditions shall also be applicable to and take effect on any and all business transactions concluded with GDI in future.

Purchaser's terms and conditions of purchase shall hereby and hereunder be contradicted to. Such terms and conditions shall not be binding on GDI either, even though GDI shall fail to contradict to their applicability on contract conclusion.

II.Contract Conclusion, Scope of Services and Supplies

1. GDI' s written order confirmation or written order shall be decisive for and govern the scope of services and supplies. In case GDI' s offer submitted with a set time limit for its acceptance is accepted in time and in case GDI have not yet confirmed said order, GDI' s offer shall be decisive for and govern the scope of supplies. Bye-agreements and/or alterations thereto shall require GDI' s written confirmation.

2. Documents forming an integral part of the offer such as illustrations, drawings, data on quantities and volumes, measures, weights, loads, processes, consumption figures, and performance data as well as on set deadlines for assembly/installation and on the number of personnel assigned to assembly/installation and supervision shall be deemed approximately ruling terms, unless designated expressly as being binding terms.

3. GDI will reserve proprietary rights and copyrights for cost estimates, drawings, and other documents; such records shall be permitted for disclosure to third parties only subject to prior approval by GDI. Drawings and other documents forming an integral part of offers submitted by GDI shall be returned to GDI immediately if the relevant contract is not placed with GDI.

4. The obtaining of governmental approvals and/or permits required, if any, shall be purchaser's task and responsibility. In case governmental decisions, imposed regulations, etc., particularly those decreed after contract conclusion involve increases in services and supplies, GDI shall have the right and be entitled to demand a reasonable extra-over price.

III.Prices and Payment

1.GDI' s prices shall be under GDI mood as prices valid ex works, unless special agreements are made.

2.Unless special agreements are made, payment shall be effected in cash without any deduction free to our payment collecting agency, within 14 (fourteen) days after invoicing, i.e. 1/3rd down payment after receipt of order confirmation, 1/3rd on expiry of half the delivery time as agreed upon, 1/3rd within 4 weeks after delivery and/or receipt of the notice stating the goods and/or services are ready for shipment; any and all installments shall be effected without any deduction by way of a direct remittance to GDI' s account.

3. Unless firm prices are expressly fixed under the contract, GDI in case that changes in cost factors arise until delivery will reserve the right to make price adjustments as well as adjustments in mutually agreed interest rates to suit changing monetary market conditions if services and supplies are effected within a period of over 4 (four) months after contract conclusion.

4. Retention of due payments or settlements against purchaser’s counter-claims disputed by GDI or not legally enforced shall be deemed impermissible.

IV.Delivery Time

1.The delivery time shall commence on transmittal of the order confirmation, but not before furnishing and clarifying component parts and documents, permits, release to be procured or delivered and/or effected by purchaser and not prior to receipt of an agreed down payment. If purchaser fails to fulfill these obligations in due time or if Purchaser wishes modifications to be done to the scope of supply, the delivery time shall be extended accordingly.

2. The delivery time shall be deemed met if the subject of delivery has left works until expiry of the delivery time or if delivery's readiness for shipment has been duly advised and notified. Besides, compliance with the delivery time shall require purchaser's fulfillment of its contractual obligations.

3. The delivery time shall be extended reasonably in the event of force majeure and in the event of other unforeseeable unusual circumstances which GDI are not answerable for, e.g. difficulties in procurement of materials, factory disturbances, strike, lock-out, governmental interventions, difficulties in supply of energy. This provision shall also take effect if said circumstances occur with sub-vendors or in the course of an already existing delay. If said circumstances make it impossible or unreasonable for GDI to perform their services and supplies either partly or wholly, GDI shall be released from their obligation to effect delivery. In case the delivery time is extended, purchaser's claims for indemnity shall be deemed excluded.

4. If damage or loss are caused to purchaser due to a delay triggered by GDI' s default, purchaser under exclusion of any further claims shall be entitled to claim liquidated damages for delay. For each full week of delay it shall amount to 0.5 %, but on aggregate to max. 5.0 % of the value of that part of the whole delivery which due to the delay cannot be utilized in time or in conformity with the contract.

5. If shipment is delayed for reasons which GDI are not responsible for by more than one week after issue of the notice stating that the shipment is ready for dispatch, GDI at their own discretion shall be permitted to take parts of the consignment on stock at purchaser's cost and risk. If said parts are taken on stock at GDI' s own factory, GDI shall have the right to charge at least 0.5 % per month of the contract price of consignment components being taken on stock.

V.Transfer of Risk and Acceptance Test

1. The risk shall pass over to purchaser latest on dispatch of consignment components, even if partial deliveries are effected or if GDI have taken-over performance of other services such as shipment, carriage or assembly/installation.

2. The type of shipment will be chosen at GDI' s discretion by exclusion of any liability. If requested and at purchaser's charge, GDI will make-out an insurance - to the extent possible - for the transport demanded by purchaser.

3. If shipment is delayed due to circumstances which purchaser is answerable for, then the risk will pass over to purchaser from the day of notifying consignments readiness for shipment, but GDI shall be obliged to effect at purchasers request and cost the insurance which purchaser demands.

4. If it has been agreed to subject the consignment parts to an acceptance test, such test shall be effected immediately at manufacturer's works after notice of readiness for acceptance test. The costs incurred for the execution of the acceptance test shall be charged to purchaser's account.

5. If no acceptance test is demanded, the service shall be deemed accepted on expiry of 12 (twelve) work days upon written notice on their completion or effected delivery if said delivery is taken-over by GDI. If purchaser has utilized the service or part of the service, the acceptance shall be deemed granted after expiry of 6 (six) work days upon commencement of the utilization, unless otherwise agreed upon mutually.

VI.Reservation of Property

1. GDI will reserve the property to the delivery item until settlement of any and all claims and demands arising from the business relationship with the purchaser at the date of delivery.

2. If the delivery item is connected, mixed with other subjects not belonging to GDI or if purchaser processes the delivery item alone or jointly with other subjects not belonging to GDI, GDI' s property shall not be lost thereby. GDI instead shall acquire the co-property in the new subject, i.e. in the ratio of the value which GDI' s reserved property has in proportion to the subjects mixed or connected to it and/or in proportion to the value of processing. This co-property shall supersede GDI' s reserved property.

3. Purchaser shall be entitled to alienate the delivery item in orderly course of business, but merely on the following conditions:

Each and every sale shall be effected under reservation of property. Reseller's claim from this property reservation as well as any other demands from the resale of the delivery item shall be assigned to GDI in advance, with it making no difference whether the delivery item is sold without or after connection, mixture, processing and to one or several user(s). The assigned claims and demands serve for GDI' s security in the amount of each sold merchandise put under reservation of property.

Reseller shall be deemed authorized to collect the claim/demand from resale despite the assignment of said claim to GDI. GDI' s collection authority shall not be affected by reseller's collection power of attorney. GDI themselves will not collect the demand/claim assigned to GDI as long as reseller duly fulfils its payment obligation towards GDI.

On request GDI shall be notified of the debtors of assigned claims/demands and the assignment of claims/demands shall be notified to debtors.

4. Purchaser shall not be allowed to pawn the delivery item nor pledge it as security. In case of seizures such as confiscation or other dispositions by third parties, purchaser shall notify GDI without delay.

5. In case of purchaser's misconduct contrary to the contractual terms and conditions, in particular in case of delay in payment, GDI after admonition shall be entitled to recollection and purchaser shall be obliged to restitution. The enforcement of property reservation as well as the seizure of the delivery item by GDI however shall not be deemed as a rescission from the contract.

VII.Liability for Defects in Services and Supplies

            By exclusion of any further claims, GDI's liability for defects in services and supplies including the lack of expressly assured properties shall be as follows:

1. All those parts shall be remedied or delivered newly ex works at GDI' s choice within a reasonable term and free of charge which demonstrably become unusable or be substantially affected in their usability within 6 (six) months after acceptance due to a circumstance arising before the transfer of risk and particularly due to deficient design, poor construction materials, or deficient workmanship. Detection of such defects shall be reported to GDI without delay.

2. Purchaser's right to enforce claims for defects shall be barred by prescription in all cases from the time of well-timed rebuke within 6 (six) months, but earliest on expiry of the warranty period.

3. No warranty is given for damage resulting from any of the following reasons:

Unsuitable or improper use, deficient assembly/installation and/or commissioning by purchaser or third parties, natural wear and tear, deficient or negligent handling, service and maintenance, unsuitable utilities, exchange materials, deficient civil work by purchaser, unsuitable construction soil, chemical, electrochemical or electric influences unless attributable to GDI' s default.

4. After notification, purchaser shall grant GDI the required time and opportunity to effect any and all remedies and substitute deliveries considered necessary by GDI at GDI' s equitable discretion, otherwise GDI shall be released from the defects liability. Only in urgent cases of risks to operational safety and to defend huge damage, with it being required to notify GDI without delay or if GDI have been in delay with the remedy of any such defect shall purchaser have the right to remedy or to have the defect remedied by third parties and to demand compensation of the necessary costs from GDI. 

5. Of the direct costs incurred by the remedy and/or substitute delivery GDI - in case the complaint turns out to be justified - shall bear the cost for the substitute component including shipment as well as the reasonable cost for dismantling and reinstallation, and furthermore, if it can be demanded equitably depending on the situation of a given case, GDI shall bear the cost of a demanded assignment, if any, of GDI' s supervisory personnel as well as of GDI' s fitters and helpers. Any and all other costs shall be borne by purchaser.

6. The warranty period for the substitute component and for the remedy will be 3 (three) months, but it shall run at least until the expiry of the original warranty period given for the delivery item. The term for the defects liability for the delivery item shall be extended by the duration of the operation interruption caused by the remedy work.

7. Any liability for consequences resulting from an improper alteration or repair work, if any, performed by purchaser or third parties without GDI' s prior approval shall be excluded.

8. Any further claims by purchaser, particularly any claim for replacement of damage not caused directly to the delivery item itself (consequential damage) shall be excluded. This exclusion from liability shall not apply in case of intent and gross negligence and on lack of expressly assured properties, if this assurance in fact was made for the purpose of assuring purchaser against damage not caused to the delivery item itself.

9. For damage GDI shall be liable only up to the amount of the insurance coverage fixed in the third party liability insurance policy made out to this effect. The amount of insurance coverage is EUR 500,000 (half of a million EUR). For damage not covered by the insurance GDI shall bear a liability of max. up to the amount of 10 % of the agreed renumeration.

VIII. Rescission and Diminution

1. Purchaser shall have the right to rescind from the contract if the whole service becomes definitely impossible prior to the transfer of risk. The same shall apply to an inability on the part of GDI. Purchaser shall also have the right to rescind from the contract if the execution of part of the delivery becomes impossible to be done in the required number when equivalent subjects are ordered and if purchaser can demonstrate and prove a justified interest in the refusal of a partial delivery; if this is not the case, purchaser can diminish the consideration accordingly.

2.If the impossibility occurs during a delay in acceptance or by purchaser's default, the latter shall be obliged to effect consideration therefore.

3.If GDI fails to utilize a reasonable period of grace (6 months in case of performance defect) granted to GDI for the remedy of a defect which GDI is responsible for or if it is impossible for GDI to remedy such a defect, purchaser by exclusion of any further claims shall be entitled to demand redhibition or diminution. Redhibition can be demanded only if purchaser’s interest in the delivery becomes void by the defect after an objective appraisal of all circumstances involved, or if purchaser's interest in said delivery is affected so substantially that acceptance of delivery cannot be exacted from purchaser. 

4.In case of unforeseen events in the sense of IV. Subpara. 3 of these terms and conditions of supply, the contract shall be adapted reasonably. Unless economically justifiable, GDI shall have the right to rescind partly or wholly from the contract.

Purchaser shall have no claims for liquidated damages due to such a rescission from the contract. If GDI make use of their right to rescind from the contract, GDI shall notify purchaser thereof without delay.

IX.Miscellaneous

1. Purchaser shall be permitted to transfer rights and duties arising under this contract to third parties only with GDI' s consent and approval.

2.Taxes and duties etc., that come up in connection with the fulfillment of the contract, are payable by purchaser.

3. The venue having jurisdiction over any and all disputes arising from this contractual relationship shall be the court having jurisdiction and competence for GDI’ s principal place of business. However, GDI shall also be entitled to take legal action at the court having jurisdiction and competence for the manufacturing works or for purchaser's principal place of business.