General Terms and Conditions of AOM-Systems GmbH

Unless otherwise agreed in individual contracts, the following shall apply:

1.       Scope, Deviating Terms

1.1     The following General Terms and Conditions shall apply to all contracts for the delivery of goods and the performance of measuring and maintenance services including any side agreements concluded by us with our customers (hereinafter the „Customer“), as far as the Customer is an entrepreneur and concludes the agreement in the scope of its commercial or freelance activity within the meaning of sec. 14 of the German Civil Code [Bürgerliches Gesetzbuch – BGB]. Business transactions with companies shall be treated in the same manner as business transactions with legal entities under public law and special funds under public law.

1.2     Any deviating terms of the Customer which are not expressly acknowledged shall not be applicable. This shall also apply, if we perform our services without reservation having knowledge of such terms and conditions of the Customer which are contradictory to or deviating from our Terms and Conditions.

2.       Conclusion of Contract

2.1     Our offers shall be subject to confirmation, unless they are expressly specified as binding offers. Any oral or written order shall be considered as a binding offer to which the Customer shall be bound for 14 days.

2.2     The contract shall come into effect upon written confirmation of the order (also by e-mail) or delivery of the goods by us.

3.       Product Documentation

3.1     Any documentation, images, drawings, specifications regarding performance, weight- and measurement specifications in our catalogues, in our product information sheets, and on the website are as detailed as possible but shall only constitute an approximate description and not a binding specification of the quality of the goods, unless expressly specified as such. Any improvements and dimensional changes within a scope that is customary in trade and reasonable for the Customer remain reserved.

3.2     All proprietary rights and copyrights to all images, drawings and other documents remain reserved. Such images, drawings and other documents may neither be copied nor made available to any third parties or used for the manufacture of the products without our express written consent.

4.       Prices / Terms of Payment / Prohibition of Set-off

4.1     Unless otherwise agreed, our prices are net prices in euros „ex works“ (Incoterms 2010) Darmstadt without packaging plus applicable value added tax and any additional taxes and duties incurred for the execution of the order.

4.2     Invoices for our deliveries and services shall be due and payable without any deduction within 14 days from the date of invoice. For timely payment, the date of receipt of the amount by us shall be relevant. Upon fruitless expiration of this period, the Customer shall be in default.

4.3     In case of default of the Customer, interest in the amount of 8 % p.a. above the current base interest rate of the European Central Bank shall be charged. We reserve the right to assert a higher amount of damages caused by the delay in payment.

4.4     Checks and bills of exchange shall only be accepted if this has been expressly agreed upon in advance and for processing only, deducting any expenses and discounts.

4.5     Our claims shall be immediately due and payable in case of serious infringement of any contractual agreements by the Customer, if the Customer is responsible for such infringements. In such a case, we shall have the right to supply any deliveries and services only against advance payment or provision of security.

4.6     Any complaints against our invoices must be raised by the Customer within two weeks after receipt of the invoice at the latest. If the Customer fails to raise the complaint in due time, the respective invoice shall be deemed approved. We shall be obliged to include a special note to this effect in our invoices.

4.7     The Customer shall only have the right to set-off against any counterclaims or retain any payments if such claims are undisputed, ready for judgment or have been legally established.

5.       Delivery and Consequences of Delayed Delivery

5.1     The delivery periods and dates indicated by us shall always apply approximately, unless expressly specified as being binding. The delivery period shall start upon receipt of the confirmation of the order, the clarification of all technical question and performance of all actions to be performed by the Customer – in particular the delivery of documents and information/specifications, required authorizations and approvals – as well as any other obligations on the side of the Customer.

5.2     Delivery shall be effected ex works (Incoterms 2010) Darmstadt.

5.3     We shall have the right to effect partial deliveries and services as customary in trade, for instance if specific parts of the deliveries or services cannot yet be supplied due to lack of specifications or information, unless the partial delivery or service is unreasonable for the Customer or has been ruled out by contract.

5.4     If the Customer has to set a grace period in order to assert any rights against us, this period shall be at least two weeks.

5.5     In case of delays in delivery or impossibility of performance, we shall only be liable for damages in accordance with section 8 of these terms and conditions.

6.       Subject Matter and Pre-conditions of the Performance of Measuring Services

6.1     Our measuring services are provided exclusively for the following areas of application: laboratory and research applications process monitoring and process control of paint spray and spray drying processes as well as for the characterization of sprays. The measuring range includes the range of particle and/or droplet sizes from 1µm up to a maximum size of 1mm and speeds from 0m/s up to a maximum of 100m/s as defined by contract as well as the refraction index, as agreed upon. The measurement of higher sizes and speeds must be expressly agreed upon in advance.

6.2     In order to ensure the contractual performance of measuring services, the Customer shall, unless otherwise agreed, provide all customer-specific materials and components at least one week before the desired date.

6.3     The Customer shall ensure that the directions regarding the measuring environment as well as the required safety precautions as described in our order documents, in particular with regard to laser safety requirements are observed.

6.4     The scope of performance owed under the contract shall be determined according to the contractual agreement between the parties, in particular the definition of the measuring parameters and targets as contained in the order confirmation, the test arrangement/-installation and any thread tests that may have been carried out in advance. Any additional wishes of the Customer with regard to any possible extensions or limitations of the measurements shall only become part of the contract if expressly agreed upon.

6.5     The adaptation and vernier adjustment of the system shall be part of the scope of performance as far as this is required to attain the agreed upon results, provided that the additional costs accruing thereby do not exceed 5 % of the total amount.

6.6     The volume, type and presentation of the data to be transferred shall be in accordance with the contractual agreement. If no contractual agreement has been made in this regard, we shall choose an adequate volume, type and representation of the data and the data transfer.

7.       Defects / Warranty

7.1     The products delivered by us, respectively the performance of measuring services, shall be in accordance with the contractual agreements. Please note that standard deviations within the scope of the usual tolerances (standard deviations) do not constitute a defect. We shall not assume any guarantees, unless this has been expressly agreed upon.

7.2     The Customer shall carefully examine the goods as well as the measuring services immediately after arrival of the goods at the destination, respectively immediately after delivery/receipt of the measurement report, also if samples or specimen have been sent or test measurements/demonstrations have been carried out in advance. The Customer shall notify us in writing about any apparent defects without delay, at the latest within seven days after delivery/receipt of the measurement report. Hidden defects shall be reported to us in writing without delay, at the latest within seven days after such defects have been discovered. If the defect has been noticeable for the Customer in the course of normal use already at an earlier point in time, this earlier date shall be decisive for the start of the period in which the Customer has to give notice of a defect.

7.3     In case of timely notification of a defect, the Customer shall be entitled, at our discretion, to request repair or supplementary performance. The supplementary performance shall take place at the original place of delivery/performance of measurement services; it shall be deemed to have failed after three unsuccessful attempts at the earliest. Any replaced parts shall become our property.

7.4     Any expenses accruing for the supplementary performance, in particular for transport, travel, work and materials, shall be borne by us if the product or performance of services is proven defective. Unless we were contractually obliged to install the defective part, subsequent performance shall include neither its removal nor its reinstallation.

7.5     No warranty shall be granted for any defects which are caused by improper or inappropriate use, incorrect installation or operation by the Customer or any third parties, normal wear and tear, incorrect or negligent handling. This shall in particular apply to any damages caused by any handling against our product description and the indications in our order documents.

7.6     The warranty does not apply if the Customer modifies the delivered good without our approval or has it modified by a third party and as a result the removal of the defect is made impossible or unreasonably difficult. In any case, the Customer shall bear any additional costs incurred for the removal of defects required due to such modification.

7.7     The warranty period shall be one year as of the date of delivery/receipt of the measurement report. The five-year limitation period for buildings and items which are normally used for a building, shall remain in existence. The statutory warranty periods in cases of fraudulent non-disclosure as well as any claims of recourse in accordance with sec. 478, 479 of the German Civil Code [Bürgerliches Gesetzbuch – BGB] shall remain unaffected.

7.8     The Customer shall only be entitled to damages for defects, as far as our warranty is not excluded or limited according to sec. 8 of these terms and conditions. Any additional or other claims for defects than those mentioned in this sec. 7 shall be excluded.

7.9     For the delivery of goods, the following additional regulations shall apply: Upon our request, the defective goods shall be returned to us carriage paid. In the event of a justified notice of defect, we shall reimburse the costs of the most reasonable way of shipping; this shall not apply in the event of an increase in costs due to the fact that the goods are located at another place than the contractually agreed place of use.

7.10   In the event of defects in any parts of other manufacturers, which cannot be removed by us due to licensing reasons or factual reasons, we shall, at our option, either assert our warranty claims against these manufacturers and suppliers for account of the Customer or assign these claims to the Customer. In the event of such defects, any warranty claims against us shall under the other prerequisites of and in accordance with these General Terms and Conditions only be possible if the legal enforcement of the above-mentioned claims against the manufacturer or supplier has been unsuccessful, or has no prospects of success, e.g. due to an insolvency.

8.       Liability, Statute of Limitation

8.1     We shall exclusively be liable for gross negligence and intent as well as for infringement of essential contractual obligations, the fulfillment of which is required for the proper performance of the contract and can be reasonably expected by the Customer („cardinal duty“).

8.2     In case of slightly negligent infringement of a cardinal duty, our liability is limited to damages which are foreseeable at the time of conclusion of the contract and typical for the specific contract.

8.3     As far as our liability is limited or excluded, this shall also apply to the liability of our employees, representatives and vicarious agents. 

8.4     The aforementioned limitations and exclusions of liability shall not apply in case of fraudulent nondisclosure of damages, acceptance of a guarantee or procurement risk, in case of liability based on the product liability act as well as in case of physical injuries (damage caused to a person’s life, body or health). No change of burden of proof to the disadvantage of the Customer is connected with the preceding provisions.

8.5     With the exception of claims in tort, any claims for damages of the Customer for which the liability is limited according to this provision, shall become statute-barred one year after the beginning of the statutory period of limitation.

9.       Retention of Title

9.1     The following retention of title serves to secure all of our existing or future claims against the Customer in the scope of the business relationship between the contractual partners, including all unsettled balances from current account (hereinafter „secured claims”).

9.2     All goods delivered by us remain our property until payment for all secured claims has been received in full. The goods as well as the goods which are subject to retention of title replacing them according to the following provisions shall in the following be referred to as „goods subject to retention of title“.

9.3     Processing of the goods subject to retention of title shall always be made on our account and for us as the manufacturer within the meaning of sec. 950 of the German Civil Code [BGB] without any obligation arising for us. Such processed goods shall be considered as goods subject to retention of title in accordance with sec. 9.2 of these terms and conditions. We hereby offer the Customer an expectant right to the new goods produced through processing, combination or intermixture respectively to our co-ownership shares in these new goods. The Customer accepts this offer.

9.4     If the Customer processes, combines or mingles the goods subject to retention of title with any goods from other sources and produces a new thing or a mixed stock, we shall be entitled to a co-ownership share in such things or stock equivalent to the proportion of the value of the goods subject to retention of title (total amount of invoice including value added tax) at the date of delivery to the value of the other processed, mingled or combined goods (total amount of invoice including value added tax) at the date of processing, combination or intermixture. The co-ownership share shall be considered as goods subject to retention of title in accordance with sec. 9.2. In the event that no such acquisition of ownership by us takes place, the Customer hereby transfers its future property or – in the above-mentioned proportion – its co-ownership share in the newly created thing respectively the mixed stock to us as security. We accept the transfer.

9.5     If the goods subject to retention of title are combined to a uniform thing or inseparably mingled with other items, and one of the other items is to be considered as the main thing within the meaning of sec. 947 of the German Civil Code [BGB], the Customer, as far as it is the owner of the main thing, hereby transfers the co-ownership share in the uniform thing in the proportion of the value of the goods subject to retention of title (final amount of invoice including value added tax) at the date of delivery to the value of the main thing (final amount of invoice including value added tax) to us. We accept this transfer. The co-ownership share shall be considered as goods subject to retention of title in accordance with sec. 9.2 of these terms and conditions.

9.6     The Customer shall handle the goods subject to retention of title with care and hold them in safe custody for us free of charge. The goods subject to retention of title may neither be pledged to third parties nor assigned by way of security before full payment of the secured claims.

9.7     In the event of attachments, seizures, or any other official orders or interventions by third parties affecting the goods subject to retention of title, the Customer shall be obliged to immediately inform such third parties of our ownership and notify us hereof in writing in order to enable us to enforce our ownership rights, in particular by way of an action based on sec. 771 of the German Code of Civil Procedure [Zivilprozessordnung – ZPO]. The Customer shall bear all costs incurred in and out of court for the revocation of such dispositions and the recovery of the goods subject to retention of title, as far as they can not be collected from third parties.

9.8     The Customer shall have the right to sell the delivered goods subject to retention of title in the regular course of business, if it can be ensured that its claims from such sale according to sec. 9.9 to 9.11 are transferred to us.

9.9     In the case of a resale of the goods subject to retention of title, the Customer hereby assigns the claim arising from such sale against the customer as well as the claims replacing the goods subject to retention of title, or otherwise arising with regard to the goods subject to retention of title, as e.g. insurance claims or tort claims in case of loss or destruction, including any current account balance claims, to us. We accept this assignment.

9.10   If the Customer sells the goods subject to retention of title together with other goods which have not been delivered by us, the assignment of the claim resulting from such sale shall only apply to the amount of the value of our goods subject to retention of title (final amount of invoice including value added tax) at the date of delivery. In the case of a sale of goods in which we own shares according to sec. 9.4 or 9.5, the assignment of the claim shall apply to the amount of this co-ownership share.

9.11   If a current account relation according to sec. 355 of the German Commercial Code [Handelsgesetzbuch – HGB] exists between the Customer and its customers, the claim assigned to us in advance by the Customer shall also include the approved balance as well as, in case of a customer’s insolvency, the then existing “causal” balance.

9.12   The Customer has the revocable authority to collect the claims resulting from sales transactions according to sec. 9.10 to 9.11. We shall only have the right to revoke the direct debit authority in accordance with sec. 9.13.

9.13   If the Customer does not fulfill its obligations under this contract with us, in particular if it is in default

–     we shall have the right to forbid the resale and processing of the goods subject to retention of title as well as the intermixture or combination thereof with other goods;

–     we shall in accordance with the general regulations for the revocation of contracts contained in sec. 323 of the German Civil Code [BGB] have the right to revoke this contract; in the event of a revocation, the Customer’s right to possession of the goods subject to retention of title shall lapse, and we shall have the right to claim surrender of the goods subject to retention of title; we shall upon consultation with the Customer have the right to enter the Customer’s premises and take possession of the goods subject to retention of title at the Customer’s expense and, irrespective of the Customer’s payment obligations and other obligations, to sell them at the best possible rate by way of discretionary sale or public auction; the proceeds of the sale shall be offset against the Customers payment obligations after deduction of the expenses incurred by us; any surplus shall be paid to the Customer;

–     the Customer shall upon request provide us with the names of the debtors of the claims assigned to us in order to enable us to inform them about the assignment and collect the respective claims; any proceeds resulting from assignments which are due to us shall be transferred to us immediately after receipt thereof, if and as soon as any of our claims against the Customer are due and payable;

–     we shall have the right to revoke the direct debit authority granted to the Customer.

9.14   If the realizable value of the securities existing for us exceeds our claims by more than 10 % in total, we will upon the Customer’s request release securities at our option.

10.     Place of Performance, Applicable Law and Venue

10.1   The place of performance for all delivery and payment obligations shall be Darmstadt, unless otherwise provided in the order confirmation.

10.2   German law shall be applicable with the exception of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

10.3   The venue for any disputes arising from or in connection with the contract – also for actions on bills of exchange and checks – shall be Frankfurt/Main, if the Customer is a merchant or has no general venue in Germany. However, we reserve the right to institute proceedings against the Customer at its general venue. The statutory regulations on exclusive jurisdictions shall remain unaffected.

October 2013