Terms of Sale

Terms of Sale and Delivery for Linoprint Products of Heidelberger Druckmaschinen AG

FOR INFORMATION PURPOSES ONLY! THIS ENGLISH VERSION OF THE ORIGINAL TERMS OF PURCHASE AND DELIVERY HAS BEEN DRAFTED FOR INFORMATION PURPOSES ONLY. THE ONLY LEGALLY BINDING VERSION IS THE GERMAN VERSION Valid as of February 2008

§ 1 Applicability
These Terms of Sale and Delivery of Heidelberger Druckmaschinen AG (hereinafter referred to as: “Heidelberg”) apply, unless otherwise expressly specified in writing, to all offers, contracts of purchase, orders and deliveries which Heidelberg extends to purchasers. They apply in equal measure to future business relationships, even where they are not expressly agreed again. Differing general terms and conditions of business of the purchaser are not recognized, even where they are not expressly contradicted.

§ 2 Conclusion of Contract
(1) Heidelberg’s price quotations are subject to change insofar as they are not expressly described in the quotation text as binding. The contract is only concluded when Heidelberg confirms the contract in writing to the purchaser.
(2) Heidelberg provides a guarantee only where this has been expressly agreed in the order confirmation or in any of its advertising material.
(3) The written materials provided by Heidelberg in the negotiation stage of a contract, such as pictures and drawings, as well as the details of weight, space, power requirements and efficiency are definitive; technical modifications or technical improvements or construction modifications are admissible where the purchaser can reasonably be expected to accept the same.

§ 3 Delivery, Transport and Passing of Risk
(1) Risk passes to the purchaser as confirmed in the order (e.g. f.o.b. German port, free German border c.i.f. or c. & f.). If the shipment is delayed through the conduct of the purchaser or due to circumstances for which Heidelberg is not responsible, the risk passes to the purchaser at the time of the notification that the goods are ready for shipment.
(2) Unless otherwise agreed, the purchaser shall conclude transportation insurance at his own cost on the basis of the General Transport Insurance Conditions, covering the risk of transport of all goods covered by the order from the factory to the agreed destination.
(3) Where commercial clauses are agreed, the Incoterms in their respectively valid version apply. The scope of delivery is specified in the order confirmation.

§ 4 Delivery Period and Force Majeure
(1) Delivery periods not expressly designated as binding are non-binding. Delivery periods commence at the earliest upon receipt of all required written materials relating to the content and conditions of the order, insofar as the purchaser is required to supply these in accordance with the terms of the agreement, and after receipt of the agreed payment or confirmed letter of credit. A delivery period is met when the goods are ready for shipment within the specified period and the purchaser has been notified thereof.
(2) Delivery periods are extended in the case of circumstances for which Heidelberg is not responsible and which have substantial influence on the production or delivery of the goods, in particular in the case of war or warlike activities, confiscation, embargo, natural disasters, labour disputes and other circumstances which affect Heidelberg or sub-suppliers (blameless interruptions in operations) for the duration of the interruption in operations. If, due to a blameless interruption in operations, the necessary modification of the contract is not possible, notwithstanding all reasonable efforts to that end, Heidelberg is released from its obligation of delivery.
(3) If the delivery period is extended due to the above-mentioned circumstances or if Heidelberg is released from its obligation of delivery, the purchaser shall have no liability claims of any kind against Heidelberg. Heidelberg shall also not be liable for blameless interruptions in operations arising during a period when it is in default of delivery. Heidelberg is obliged to notify the purchaser with regard to the arising of any of the above-mentioned circumstances.
(4) Heidelberg is permitted to make partial deliveries and to issue partial invoices to a reasonable extent prior to the expiration of the delivery period.
(5) If shipment or delivery of the goods is delayed at the request of the purchaser or due to circumstances which lie in the purchaser’s sphere of risk and responsibility, the purchaser is required to pay Heidelberg the costs arising for the storage of the goods and also the accrued interest on the capital required for the goods. In the case of storage at the premises of Heidelberg, the claim for interest amounts to at least 0.5% of the invoice amount for each month or part of a month of storage, commencing one month following notification of the readiness for shipment; the purchaser shall have the right to prove that the amount of damage was lower. Heidelberg is in any event entitled, after having set a reasonable period which has elapsed without result, to dispose over the goods and deliver replacement goods to the purchaser within a reasonably extended period.

§ 5 Delivery of Software
If the goods delivered are sold together with electronic features, Heidelberg grants the purchaser an essentially non-transferable and non-exclusive right of use of the pertinent software. This only entitles the purchaser to make use as specified of the electronic features of the goods delivered. In particular, the purchaser has no right to disseminate, copy or process the software in any way. A transfer is, by way of exception, permitted where the purchaser demonstrates a justified interest in the transfer to a third party, thereby relinquishing the right of use for himself, e.g. where the goods delivered are resold. In such circumstances, the purchaser is obliged to place his purchaser under a contractual obligation to observe the rights of Heidelberg. In addition, the respectively valid version of the Allgemeine Bedingungen für die Nutzungsüberlassung von Software der Heidelberger Druckmaschinen AG (general conditions for the transfer of the right of use of software of Heidelberger Druckmaschinen AG) and/or its subsidiaries are applicable. The written materials and programmes required for the operation of the goods delivered are regularly the object of copyrights and other intellectual property rights, and remain the property of Heidelberger Druckmaschinen AG and/or its subsidiaries.

§ 6 Prices
Deliveries are made at the prices which have been published in the respectively valid version of the price lists. All prices apply ex works/point of shipment; for spare parts and consumable materials ex dispatch warehouse. All prices, unless otherwise specified, are quoted in Euro, to which costs for transport, insurance, installation and instruction, as well as all national taxes and official fees must be added.

§ 7 Payment and Default
(1) Payments are to be made to Heidelberg in cash without any deduction as specified on the invoice. Unless otherwise agreed, payments are to be made by irrevocable letter of credit confirmed by a German bank.
(2) In the case of default in payment, default interest at the legally specified rate, but no less than 9 % per annum, will be charged; the purchaser has the right to prove that the amount of damage was lower, up to the amount of the legally specified rate of interest.
(3) In the case of instalment payments, Heidelberg is entitled to call due the entire remaining purchase price if the purchaser is in default of two or more instalment payments in sequence and the outstanding amount is more than 10% of the purchase price.

§ 8 Retention of Title
(1) Heidelberg retains the rights of ownership and copyright in price quotations, drawings and system concepts and in all documents supplied. All reproduction or transfer to third parties is prohibited.
(2) Heidelberg retains title in the goods sold until full payment has been made, insofar as this is permitted by the laws of the nation in which the goods sold are located. Should such retention of title not be permitted, Heidelberg is entitled to such similar rights to secure its property as the appropriate law provides. The purchaser must provide Heidelberg with all support so that it may take all necessary measures to secure its property or to exercise its similar rights, e.g. rights of lien.
(3) Until full payment of the purchase price has been made, the following applies:
a) The purchaser has the right to use and sell the goods delivered, within the ordinary use of business.
b) If the goods are processed or reshaped by the buyer and if processing is done with Goods that Heidelberg has no property in, Heidelberg shall become co-owner of the goods. The proportion of title shall follow from the proportion of the invoice value of the goods delivered by Heidelberg and the invoice value of the other goods.
(4) The buyer hereby assigns to Heidelberg all claims arising from the resale of the goods delivered under retention of title. If the goods sold by buyer shall be a processed good or a mixed stock, where, in addition to the goods delivered by Heidelberg only such goods exist that are the buyer’s property, the buyer shall assign all of the claim arising from the resale.
(5) In the event of any third party action against Heidelberg goods the buyer shall notify such party about Heidelberg’s property and immediately inform Heidelberg about such action.

§ 9 Claims for Defects - Rule of Limitations
(1) Should goods delivered be defective, the purchaser has the following rights:
a) Heidelberg is obliged to rectify the defect and may, at its option, perform this either by removing the defect through remedial measures or by delivering goods free of defects.
b) The period of limitation for claims with respect to defects shall be twelve months after the delivery of the goods. Defects in the goods delivered must be immediately reported to Heidelberg by the purchaser. Replaced parts become the property of Heidelberg.
c) If the remedial measures prove ineffective, the purchaser is permitted to rescind the contract or reduce the purchase price. Rescission of the contract is not permitted where the breach of duty on the part of Heidelberg is only insubstantial.
d) In order for Heidelberg to carry out the remedial measures and deliver the replacements it considers necessary, the purchaser, in agreement with Heidelberg, must supply the required time and opportunity for this task. Should the purchaser fail to do so, Heidelberg is released from liability for any consequences which may result. Should the purchaser, for operational reasons, choose to have Heidelberg send an express technician or perform the work outside the normal working hours, involving Heidelberg in extra cost, the purchaser shall bear the extra costs thereby arising, e.g. for overtime, longer travel routes, etc.
(2) Claims for defects are excluded:
a) for used machines or other used goods, unless liability for defects is expressly agreed.
b) for parts delivered which, due to their character or the type of use, are subject to wear and tear through normal use, with the exception of the cases specified in § 9, paragraph 6.
(3) No defect in the goods delivered exists:
a) where goods delivered by Heidelberg are used in the operations of the purchaser in functional conjunction with hardware or software components already existing or such as were purchased from a third party, insofar as the problem was caused by components not delivered by Heidelberg or their lack of compatibility. If Heidelberg has guaranteed compatibility with products of third parties, this only applies to the product version current at the time of the guarantee, not to older or future product versions (updates or upgrades) of such product.
b) if a problem is the result of the purchaser’s not having ensured compliance with the technical requirements which were specified in the documentation and any supplementary material supplied to him. The cost of the service work required to resolve the problems mentioned under a) and b) above is to be borne by the purchaser in accordance with the respectively applicable service conditions.
(4) For damage resulting from natural wear and tear, incorrect or careless treatment, excessive use, unsuitable equipment, unsuitable operative location, in particular set up of floor, lack of stability or unsuitable power supply, chemical, electrochemical or electrical influences, weather and other natural influences, the purchaser remains solely responsible.
(5) Heidelberg is only responsible for the cost of remedial measures necessary, in particular the costs of transport, travel, labour and material costs, at the point of delivery, unless the goods delivered have, in accordance with § 8, paragraph 3c, been moved to another operational location of the purchaser. Additional costs resulting from the removal of the goods delivered to a different location without the agreement of Heidelberg are to be borne by the purchaser.
(6) For defects in consumables, the following applies: upon the discovery of a defect, the consumables must be separated in the condition they were in at the time of discovery and held ready for inspection by Heidelberg. Should the purchaser fail to comply with this stipulation, they are deemed as accepted by the purchaser in the condition they were in at the time of delivery without any further liability on the part of Heidelberg. § 9, paragraph 1 applies accordingly.

§ 10 Liability and Compensation for Damages
(1) In case of injury to life, body or health which is due to a negligent breach of duty on the part of Heidelberg or to a wilful or negligent breach of duty on the part of one of its legal representatives or vicarious agents, Heidelberg is liable in accordance with the statutory provisions.
(2) For other damage, the following applies:
a) For damage which results from a grossly negligent breach of duty on the part of Heidelberg or from a wilful or grossly negligent breach of duty on the part of one of its legal representatives or vicarious agents, Heidelberg is liable in accordance with the statutory provisions.
b) For damage which results from the breach of substantial contractual duties as a result of ordinary negligence on the part of Heidelberg, Heidelberg’s legal representatives or vicarious agents, Heidelberg’s liability is limited to the foreseeable damage typical for the type of contract, subject to a maximum sum in the amount of the value of the goods delivered.
c) Claims for damages for other damage arising from breach of ancillary duties or non-substantial duties in the case of ordinary negligence are excluded.
d) Claims for damages arising from default as a result of ordinary negligence are excluded; the purchaser’s statutory rights following the expiration of a reasonable extension of time remain unprejudiced.
(3) The exclusions or limitations of liability do not apply insofar as Heidelberg has fraudulently failed to admit to a defect or has given a guarantee as to the properties of the goods.
(4) The claim of the purchaser to reimbursement of wasted expenditure instead of claims for damages in place of performance remains unprejudiced.

§ 11 Liability for Indirect Damages
Heidelberg is not liable for indirect damage resulting from a defective delivery, e.g. production stoppage, loss of profits and extra consumption of materials, except in cases of wilful intent or gross negligence.

§ 12 Rescission of Sales Contract
(1) If the purchase contract is rescinded, e.g. due to backing out by either of the parties to the contract, the purchaser is, without prejudice to the steps to be carried out in accordance with the following paragraphs, obliged in advance to return the goods delivered to Heidelberg. Heidelberg is entitled to have the goods delivered collected from the premises of the purchaser; § 8, paragraph 3e applies accordingly.
(2) Heidelberg may furthermore claim reasonable remuneration from the purchaser for the deterioration or loss of the goods, or for the impossibility of handing over the same due to other reasons which lie within the purchaser’s sphere of risk and responsibility.
(3) In addition, Heidelberg may demand remuneration for the use of the goods delivered if the value of the goods delivered has decreased between the completion of the installation and its direct repossession in full by Heidelberg. This reduction in value is to be calculated from the difference between the total purchase price in accordance with the order and the current value as ascertained through the proceeds of resale or, if no resale is possible, through assessment by a duly sworn expert.

§ 13 Assignment
The assignment of rights and/or transfer of the obligations of the purchaser under the contract is not permitted without Heidelberg’s express written consent.

§ 14 Export Control Regulations
Both the goods delivered and the software may be subject to the Export Control Regulations of Germany, the European Union, the United States of America or other nations. In the case of subsequent export of the goods delivered to a foreign country, the purchaser is responsible for compliance with the appropriate statutory regulations.

§ 15 Place of Performance, Jurisdiction, Applicable Law
(1) For deliveries and performance, the place of delivery or the place where performance is to be made is the place of performance. For all other obligations under the contract, the place of performance is the location of the dispatch address.
(2) The parties agree upon the exclusive jurisdiction of the Heidelberg courts.
(3) Insofar as the above conditions contain no definitive provision, German law is applicable, with the exclusion of the UN Convention relating to the International Sale of Goods.

§ 16 Additional Agreements, Partial Invalidity
(1) All agreements made between Heidelberg and the purchaser for the purpose of performance of this contract have been set out in writing in the present contract. There are no verbal agreements.
(2) Should any of these provisions be or become invalid, either in whole or in part, the remainder of the contract shall remain valid.

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