AGB

Sales, delivery and payment terms
constituted on 21.02.2018

All contracts closed by Fresenius Umwelttechnik GmbH are subject to the following conditions unless otherwise agreed in written form. The conditions are in that form part of the contract. Amendments, changes or cancellations have to be in written form.

I. Scope of deliveries and services

1. Initial offers for construction of facilities and systems are non-binding.
2. A binding offer from Fresenius Umwelttechnik GmbH can only be accepted within a period of 30 days.
3. The mutual written declarations are decisive for the scope of supplies and services.
4. Additional agreements are only binding if confirmed in writing.
5. All future changes in the configuration or in the scope of the delivery have to be in written form and approved by Fresenius Umwelttechnik GmbH.
6. All engineering services that are provided for an offer have to be paid for in case it does not come to a delivery.
7. Maintenance and spare parts are not included in the delivery and have to be ordered separately.
8. Protection devices will be supplied as required by law or explicitly agreed.

II. Prices, packaging, insurance

1. All prices are excluding VAT. Imported goods are charged at the applicable rate of duty. Other duties that may be fixed by the legislature currently or in the future for the services or products offered by Fresenius Umwelttechnik GmbH or for the manufacturing, sale, supply, import or export of such products or services may be calculated retrospectively.
2. All prices are EXW under INCOTERMS 2000.
3. Fresenius Umwelttechnik GmbH reserves the right to correct obvious mistakes and miscalculations.
4. Fresenius Umwelttechnik GmbH reserves the right of partial delivery. If delivery is effected later than agreed on request of the customer, the costs incurred for this may be charged.
5. After conclusion of the contract, changes to the subject of the contract will be followed by changes of prices on a regular basis.
6. The agreed prices are valid for a period of 4 months.
7. The buyer has to effect the insurance of the delivery item, otherwise Fresenius Umwelttechnik GmbH is entitled to insure the goods at the expense of the buyer.

III. Retention of title

1. Fresenius Umwelttechnik GmbH reserves the right to ownership of the delivered goods towards the buyer until payment of all receivables. This also applies if payments are made for specifically designated claims. Before payment of all receivables the goods may not be pledged or transferred as assurance to third parties.
2. The goods may only be resold by resellers to their customers within their ordinary business, provided that the claim arising from the resale is transferred. At resale, all claims arising from the resale are hereby directly assigned to Fresenius Umwelttechnik GmbH. In case of suspension of payments by the buyer the right of resale expires. In case of resale, the goods remain the property of Fresenius Umwelttechnik GmbH until payments have been effected by the third party purchaser. He has to enable Fresenius Umwelttechnik GmbH to collect information required, to hand over documents, to inform the debtor of the assignment and issue Fresenius Umwelttechnik GmbH at its own expense certified documents of assignment of receivables. Fresenius Umwelttechnik GmbH is authorized to inform the third party debtor about the assignment of claim in the name of the buyer.
3. The rules of the extended retention of title cover the installation in other equipment. The property of Fresenius Umwelttechnik GmbH is also in these cases not lost if the Fresenius Umwelttechnik GmbH devices are not integral part of other systems.
4. In case of distraint or other intervention by third parties, the buyer has to inform Fresenius Umwelttechnik GmbH immediately.

IV. Terms of payment

1. In case of satisfactory creditworthiness of the buyer, all payments are due net without deduction in the contract currency within 14 days after invoice date.
2. For payments within 8 days after the invoice date, the buyer may claim 2% discount. Service invoices are immediately payable without discount (see § VIII / 4).
3. If receivables are deferred, they are immediately payable without deduction if the buyer comes into arrears with a payment towards Fresenius Umwelttechnik GmbH or if Fresenius Umwelttechnik GmbH detects a worsening of his financial position or financial status. In this case, Fresenius Umwelttechnik GmbH may require security agents and declare those due to immediate payment.
4. a) Contracts with a net value of EUR 20,000.00 are subject to the following payment:
   1. a) 50% on receipt of order confirmation (contract),
   2. b) 50% 14 days after the invoice date.
5. b) Contracts with a net value of EUR 50,000.00 are subject to the following payment:
   1. a) 30% on receipt of order confirmation (contract),
   2. b) 40% on receipt of notice of readiness for dispatch
   3. c) 30% 14 days after the invoice date.
6. In case of exceedance of the payment period normal bank interest at least in the amount of 4 % above the respective discount rate of the German Bundesbank are calculated without prejudice to other rights.
7. The buyer is only authorized to retain payment or to offset with other claims if those are recognized by Fresenius Umwelttechnik GmbH or are legally determined.
8. Fresenius Umwelttechnik GmbH delivers against prepayment of the invoice amount to buyers not standing in ongoing business relationship or having their credit-worthiness questionable.

V. Delivery and transport

1. The shipment of the product will be ex factory on purchaser´s risk. This applies even if and when shipment is with Fresenius Umwelttechnik GmbH´s own means of transport.
2. Containers and pallets are to be returned free of charge to Fresenius Umwelttechnik GmbH, wooden boxes are charged at original costs and not taken back. The buyer is charged with the costs for shipping and packaging.
3. All delivery dates indicated by Fresenius Umwelttechnik GmbH are estimated ones. Although Fresenius Umwelttechnik GmbH will try to adhere to the indicated delivery dates, the buyer may not claim damages due to non compliance of the delivery date. Mandatory delivery dates require all necessary technical and / or commercial information at Fresenius Umwelttechnik GmbH namely at a point of time indicated by Fresenius Umwelttechnik GmbH.
4. If shipment is delayed at the instigation of the buyer, the risk devolves to the buyer from the point of time Fresenius Umwelttechnik GmbH informed the buyer of the fact that the goods are ready for shipment. Fresenius Umwelttechnik GmbH is entitled to charge the buyer with costs for the delivery occurring in the factory, at least 0.5 % of the invoiced amount for each full month, limited however to 5% of the invoice, unless Fresenius Umwelttechnik GmbH may actually prove higher costs. If necessary, Fresenius Umwelttechnik GmbH may dispose of the delivered goods after set and expiration of a reasonable time. The buyer in default of acceptance may be supplied with reasonably extended delivery period. In this case, Fresenius Umwelttechnik GmbH may also withdraw from the contract provided that a contract can not be expected.
5. In case the delivery period can not be kept due to force majeure or any other unforeseen or not to be influenced circumstance, it will be extended in an appropriate way.
6. If the delivery date is exceeded for other reasons, the rights of the buyer go by paragraph VII.
7. Deliveries must be inspected by the buyer immediately upon receipt and in the presence of the responsible of the transport company for any obvious shipping damage. The receipt form submitted to the shipping company has to contain the remark “contents of the shipment not examined for concealed shipping damage" . Hidden damages in transport have to be reported within the following delays to Fresenius Umwelttechnik GmbH or the shipping company upon receipt of the shipment:

– Shippers (ship): 3 days after delivery
– Freight forwarders and warehouse keepers: 6 days after approval
– Post/mail: 24 hours after approval
– All other carriers: 7 days after approval

Vl. Warranty and other liability

1. For warranty and other liability or deficiencies in services or delivery including wrong deliveries incorrect performances the regulations listed below apply. These apply even if the contract includes installation and bringing to service by Fresenius Umwelttechnik GmbH or if it is an independent repair order or other contract for work performance.
2. Fresenius Umwelttechnik GmbH warrants in accordance with the current state of technology. Regarding warrant of features, Fresenius Umwelttechnik GmbH warrants for the accuracy and precision of the measurement results only if the delivered goods have been installed according to instructions and if the chemical composition and physical characteristics of the sample are within the specifications mentioned by the buyer in his order.
3. In case the goods supplied by Fresenius Umwelttechnik GmbH do not have the assured characteristics, Fresenius Umwelttechnik GmbH may repair the goods, modify, revoke and replace, and refund the buyer the purchase price.
4. Fresenius Umwelttechnik GmbH is not liable for the failure of the goods or for the deviation of the measured results in case the goods react differently in the process flow of the buyer compared to previous laboratory measurements and / or as specified in the order of the buyer. General changes in design or building before the delivery of goods which serve technical progress do not entitle the buyer to complain in any form.
5. For the rest, Fresenius Umwelttechnik GmbH is liable as follows:
   1. 1. a)A guarantee is only granted is unusable or its usability is remarkably restricted as a consequence of a circumstance that occurred before the transfer of perils, in particular due to faulty construction, bad material or poor workmanship.
      2. b)The warranty period is 12 months from the transfer of perils. The enforcement of warranty or other claims and deadlines does not have any impact on payment obligations.
      3. c)Identified defects are to be reported in writing within 8 days to Fresenius Umwelttechnik GmbH. In case of belated notification the warranty expires.
      4. d)The return of the goods for repairs to Fresenius Umwelttechnik GmbH by the buyer has to be agreed with Fresenius Umwelttechnik GmbH in advance to enable Fresenius Umwelttechnik GmbH to give buyer the necessary packing and shipping instructions. All defective parts or components replaced during the warranty period become property of Fresenius Umwelttechnik GmbH.
      5. e)The unlimited guarantee commitment only contains parts manufactured by Fresenius Umwelttechnik GmbH. In the case of foreign-made parts, the warranty is limited to the manufacturer’s warranty.
      6. f)Any alteration or repairs by the buyer or by a third party excludes warranty claims. This applies in particular for damage caused by pollution and destruction of optical components, gaskets, plastic parts, heating elements, isolation, batteries, etc., regardless of operating time. Damages caused by unusual strain, unsuitable equipment, defective components and physical or chemical effects for which Fresenius Umwelttechnik GmbH is not responsible or which at the time of the contract were not predictable are also excluded .
      7. g)The buyer may only clear the deficiency at his expense only in urgent cases of danger to operational safety and to prevent excessive damage after having made an agreement with Fresenius Umwelttechnik GmbH. These costs would be paid by Fresenius Umwelttechnik GmbH if they had occurred also for Fresenius Umwelttechnik GmbH during the rectification process by Fresenius Umwelttechnik GmbH itself.
      8. h)Fresenius Umwelttechnik GmbH shall be liable up to the amount covered by the liability insurance.
      9. i)For any kind of consulting Fresenius Umwelttechnik GmbH is only liable if there was a separate written agreement for consultant services.
      10. j)The expiry of the warranty period will be delayed for the period of interruption that occurs due to the replacement or repair. This applies only to those parts of the plant which can not be operated due to the disruption.

VII. General limitation of liability

1. The liability of Fresenius Umwelttechnik GmbH is based on the agreements made in the preceding section VI.
2. Fresenius Umwelttechnik GmbH is not liable for damages to the delivered goods, caused by natural disasters, fire, normal wear and tear, improper use, faulty or negligent handling, operation, installation and commissioning. In these cases, Fresenius Umwelttechnik GmbH also not be liable for consequential damages.
3. Fresenius Umwelttechnik GmbH is not liable for damages to the delivery item caused by natural phenomenon’s, fire, normal abrasion, inappropriate or improper use, faulty or inattentive treatment, operation, installation or start of operation. In these cases, Fresenius Umwelttechnik is not liable for subsequent damages either. Fresenius Umwelttechnik GmbH is also not liable for subsequent damages of the goods of any kind caused by carelessness or inattentiveness by Fresenius Umwelttechnik GmbH or one of its assistants.
4. The buyer can only claim damage claims for negligent breach of contractual obligations in case of intent or gross negligence by Fresenius Umwelttechnik GmbH or any of its agents.
5. These damage claims expire 6 months after delivery.

VIII. Repairs

1. In case a cost estimate is to be submitted before the execution of repairs, this should be stated explicitly. The cost estimate has to be paid for if it is not followed by an order for the repairs.
2. Fresenius Umwelttechnik GmbH decides whether a repair is done in its own or at the place of use of the goods or in a foreign workshop.
3. For a return shipment of unrepaired devices, an administrative charge of 95.00€ is applied.
4. Devices that are scraped on request of the customer are charged with an expense allowance of 35.00€.
5. The warranty period for repaired or replaced parts is 6 months.
6. Repair bills are due immediately and without discounts.

IX. Conditions for the rental of devices and accessories

Our devices are hired out exclusively in accordance with the present rental conditions. Both the renter and the hirer accept them as binding, also as regards all future business relationships.

1. Our order confirmation is relevant for the execution and the contents of the contract. All offers are non-binding.
2. If the device is picked up personally by the renter, the rental period shall be at least one day and start on the day on which the device leaves the hirer’s warehouse. If the rental device is shipped by a forwarding agency, the rental period shall be at least 2 days. It shall start on the business day following the day of shipment and end with the device’s arrival at the warehouse in Herten.
3. The device is shipped as follows:
   a. By a forwarding agency commissioned by us. All transport costs shall be borne by the renter.
   b. According to the shipment instructions given by the renter. The transport costs shall be borne by the renter.
   c. Collection. The transport costs shall be borne by the renter.
4. The device including its accessories and instruction manuals must be returned in its original packaging and secured against fracture. The return costs shall be borne by the renter. The risk related to the rental equipment shall be borne by the renter from the time of departure to the time of return from/to the warehouse of Fresenius Umwelttechnik GmbH.
5. The rental fee is specified in the order confirmation. It is based on our list prices and subject to value added tax. The rental period indicated by the customer is calculated on a daily, weekly or monthly basis. In case of exceedance, the rental period will be invoiced on a daily basis at the end of a month. The rental fees, the additional costs and the value added tax shall be paid net within 14 days from the invoicing date. In case of default of payment, interest at 5% above the Bundesbank discount interest rate shall be paid on the outstanding amount. However, the minimum interest rate to be paid shall be 9%. Apart from that, the hirer is entitled to demand the device’s immediate return and/or to arrange for its retrieval at the expense of the renter. If the renter is in default of payment, or if the hirer becomes aware of any circumstances questioning the renter’s creditworthiness, all payments shall become immediately due and payable.

The withholding of payments or the offset against any counterclaims on the part of the renter shall be excluded unless such counterclaims have been legally asserted, or unless they are undisputed or attributable to intentional acts on the part of the hirer.

6. The renter has to make sure that the devices are used exclusively by qualified personnel as well as in accordance with the manufacturer’s instructions for use and the purpose specified by the hirer. The renter is required to fully adhere to all instructions given by the manufacturer or the hirer. Besides, the renter must also comply with the hirer’s technical instructions. The renter is liable for any damages caused by non-compliance with the provisions/instructions. The hirer is entitled to have the rental device checked at the place of use at any time.
7. Only the renter is entitled to use the device. Any subletting is subject to the hirer’s written consent. Without the hirer’s authorisation, it is not permitted to take and use the device outside the Federal Republic of Germany. The renter is liable for any damages or economic disadvantages incurred by the hirer due to any infringement of these provisions. All embargo provisions are to be complied with.
8. The renter is required to maintain the device in good condition and to use it in compliance with the operating instructions. In case of loss of or damage to the device, the renter shall pay the original price in recompense for the loss/damage. This shall not apply in case of normal wear and tear.
9. In case of errors, malfunctions and damages with regard to the rental device, the renter must inform the hirer immediately and wait for the hirer’s further instructions. The renter is not entitled to make any changes, modifications or adjustments to the device. Neither is the renter allowed to repair or to attempt to repair the device, unless the hirer’s written consent has been obtained. Insofar as the rental device’s errors, malfunctions and damages are not attributable to the renter, the renter is, at the hirer’s discretion, entitled to ask for a new delivery or the immediate repair of the device. Any further claims for damages are excluded unless they are attributable to deliberate or grossly negligent behaviour on the part of the hirer or their agents.
10. Company logos and identification numbers of the manufacturer or hirer, type plates, calibration cables or other markings must be left unchanged. It is prohibited to make any changes to the rental device.
11. The packaging, the operating instructions and the accessories are the property of the hirer and an integral part of the rental device. All parts must be handled with care and returned completely.
12. Consumables are bought by the renter. The respective invoice amount is due immediately. The hirer grants a 14-day term of payment. If unused materials are returned in their original packaging at the end of the rental period, the hirer will issue a proportional credit note.
13. Supplied software must only be used in accordance with the licence owner’s known conditions. The renter is required to ensure that neither the renter nor their agents will use the software contrary to contract. The renter knows that any improper use might result in unlimited claims for damages on the part of the licence owner. That is why the renter hereby holds the hirer harmless against any claims related thereto.
14. In case of seizure of the device, the renter must immediately submit the seizure report to the hirer. The same applies if any rights relating to the rental device are asserted by third parties (property owners, mortgage holders etc.).
15. In the event that individual provisions of these rental conditions are invalid, this shall not affect the validity of the remainder of the provisions.
16. Recklinghausen shall be the place of fulfilment and jurisdiction for all disputes arising from and in connection with these rental conditions.
17. With the publication of these rental conditions, all previous rental conditions shall be rendered invalid.

X. Additional agreements

Fresenius Umwelttechnik GmbH reserves unrestricted ownership and property rights on drawings and other documents, they must not be made accessible to third parties. Drawings and other documents that belong to offers have to be returned immediately upon request if the contract is not placed with Fresenius Umwelttechnik GmbH. Documentation of the buyer may be accessible to third parties in case Fresenius Umwelttechnik GmbH has transferred deliveries and services permissibly to them.

XI. Place of fulfillment and place of jurisdiction

Place of fulfillment and place of jurisdiction is Gelsenkirchen.

XII. Validity

If any of these conditions – for whatever reason – should no longer apply, the validity of the remaining conditions shall not be affected.

XIII. Privacy policy

Data related to the execution of business processes are processed and stored in compliance with the statutory provisions at Fresenius Umwelttechnik GmbH.