§ 1 Scope of validity

(1) These General Terms and Conditions (hereinafter: General Terms and Conditions) apply to all contracts concluded between us, the company IMS Industrial & Marine Services GmbH & Co. KG, Rubbertskath 29-31, 46539 Dinslaken, Germany, represented by IMS Verwaltungs GmbH, represented by the managing director Mr. Andreas Breuckmann, Telephone: +49 (0) 2064 601 90-0, Fax: +40 (0) 2064 601 90 91, E-Mail: sales@ims-germany.com (hereinafter referred to as the provider) and you as our customer.

(2) As a customer, you accept the validity of the following general terms and conditions for the use of the services by the provider. These general terms and conditions (GTC) shall also govern all future transactions between the partisans shall also apply if we perform delivery despite our knowledge of differing or contrary terms. Differing or contrary terms shall not apply except if expressly agreed upon in writing.

(3) These general terms and conditions shall only apply vis à vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).

§ 2 Subject of the contract

The subject matter of the contract can be a purchase contract, a work contract, a work delivery contract or another contract and is specified in the order confirmation. This specifies the specific details of the contract as well as the expected or binding date of performance.

§ 3 Offer, Acceptance

(1) Insofar as the order constitutes an offer within the meaning of § 145 BGB we are entitled to accept the offer within two weeks.

(2) Drawings, illustrations, dimensions, weights or other information about the delivery and service are only binding if they are jointly agreed upon and the binding nature is expressly agreed in writing.

(3) We reserve all rights to all offers made by us as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. These objects and documents may only be used within the scope of what is contractually permitted; in particular, they may not be used to reproduce the same or similar products. They may not be made accessible to third parties, disclosed, used or reproduced by yourself or through third parties without our expressed consent. Upon request, the client must return these documents and items to us in full and destroy any copies that may have been made and, if necessary, delete them with evidence if they are no longer required by him in the normal course of business or if negotiations do not lead to the conclusion of a contract.

§ 4 Prices, Payment

(1) Our prices are net exclusive of the respective statutory VAT and exclude the costs of packaging, transport, shipping and other costs, unless expressly agreed otherwise. All prices are in euro.

(2) The price is due and payable net within 8 days from the date of the invoice unless otherwise agreed. § 641 Paragraph 1 BGB remains unaffected in the case of work services. From the due date default interest in the amount of 9 % above the respective base interest rate p.a. shall accrue. We reserve the right to assert further claims for damages caused by delay.

§ 5 Offset/Retainer

The customer shall be entitled to offset only insofar as the customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The customer is entitled to claim retainer rights only to the extent such rights are based on the same transaction.

§ 6 Delivery

(1) Delivery is conditioned upon timely and proper performance of all duties of the customer. Defenses based on non/performance of the contract are reserved.

(2) In case of default in acceptance or other breach of duties to cooperate by the customer we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the customer at the time of such a default or breach of duty to cooperate.

(3) Delivery dates and delivery periods, which can be agreed upon bindingly or non-bindingly, must be stated in writing. If delivery dates or delivery periods are to be binding, they must be expressly designated as such and require our express, separate written consent. All information about delivery dates and delivery times is to be understood as non-binding and approximate information in commercial transactions and is subject to timely self-delivery.

(4) In cases of force majeure or an operational disruption of our company or our suppliers, in particular a lack of raw materials and energy, labor disputes, changes in official approvals and laws or other circumstances for which we are not responsible, we are entitled to extend the aforementioned dates and deadlines to extend the duration of the disruption in performance caused by these circumstances plus an appropriate start-up time.

§ 7 Passing of Risk, Shipment

(1) The risk of loss and deterioration of the delivery passes on to the client as soon as the shipment has left our company. This also applies if the shipment is carried out using our own means of transport. At the request and expense of the client, we will insure the shipment against transport, breakage, fire damage and loss. If the dispatch of the goods or service is delayed at the request of the client, the risk is transferred to the client from the time delivery is ready.

(2) Acceptance of a work takes place at our company, unless otherwise agreed. A work is deemed to have been accepted if we have given the client a reasonable deadline for acceptance after completion of the work and the client does not legitimately refuse acceptance within this period, citing at least one defect. The warranty period begins with this acceptance.

§ 8 Retention of Title

(1) We retain title to the goods until receipt of all payments in full. In the event of breach of contract by the customer including, without limitation, default in payment, we are entitled to take possession of the goods.

(2) The customer shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.

(3) As long as the purchase price has not been completely paid, the customer immediately informs us in writing if the goods become subject to rights of third person or other encumbrances.

(4) The customer may resell goods subject to the above retention of title only in the course of his regular business. For this case, the customer hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the customer shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the customer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payment.

(5) Insofar the above securities exceed the secure claim by more than 10%, we are obligated, upon our election, to release such securities upon customer’s request.

§ 9 Warranty

The legal regulations apply to the warranty with the following provisions:

(1) Precondition for any warranty claim of the customer is the customer’s full compliance with all requirements regarding inspection and objection established by sec. 377 HGB (German Commercial Code).

(2) Warranty claims shall be time barred after 12 months of the passage of risk.

(3) The warranty is excluded for the delivery of used goods, in particular refurbished goods.

(4) In case of non-conformity of the goods the purchaser is entitled to alternative performance in the form of subsequent improvement or delivery of conforming goods. If such alternative performance has failed, the purchaser is entitled to reduce the purchase price or withdraw from the contract.

§ 10 Liability

(1) In case of intent or gross negligence on our part or by our agents or assistance in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentional our liability for damages shall be limited to the typically predictable damage.

(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.

(3) Orders based on drawings, sketches or other information provided to us are carried out at the client’s risk. If we encroach on third-party intellectual property rights as a result of executing such orders, the customer releases us from the claims of these rights holders. The client is responsible for any further damage. Our liability for any infringement of intellectual property rights that are related to the use of the delivery items or services or the connection or use of the delivery or service items with other products is excluded.

(4) Any liability not expressly provided for above shall be disclaimed.

§ 11 Export control

The fulfillment of the contractual obligations (deliveries and services) is subject to the proviso that no national, European or international export control regulations, such as embargoes, sanctions or other restrictions, conflict with fulfillment. The client undertakes to provide all information and documents necessary for export or shipment. Delays due to export control testing or approval procedures affect delivery times and deadlines. If the required approvals are not granted or the contractual service is not eligible for approval, the contractor is entitled to withdraw from the contract. The assertion of damages of any kind, in particular due to delay or non-performance, or other rights by the client is excluded in this respect.

The client undertakes to comply with all applicable export control regulations towards the contractor. If the goods delivered by the contractor (goods, software or technology including associated documents) are passed on to third parties, the client must comply with the applicable export control law regulations, namely national, European or those of the third country concerned.

§ 12 Confidentiality and retention obligations

(1) The contracting parties ensure that all persons entrusted by them with the handling, fulfillment or processing of the contract comply with the legal regulations on data protection and the law on the protection of trade secrets (GeschGehG). The contracting parties will also treat confidentially the information, documents or items obtained from the other contracting party’s area regarding personal data, operational or business secrets, as well as information that is marked as confidential or that can be assessed as confidential for other reasons, regardless of whether the information were transmitted orally, in writing or in another way, e.g. digitally embodied. This obligation applies regardless of whether the information considered confidential is marked accordingly or is subject to technical or organizational protective measures. If the information to be exchanged does not meet the requirements of a business secret under the GeschGehG in an individual case, this information is still subject to the obligation of confidentiality according to the will of the contracting parties, provided that it is clear to the other contracting party that it is information that should be treated confidentially.

(2) The contracting parties will keep confidential information secret, take appropriate confidentiality measures to protect against unauthorized access and will not pass on information to third parties without authorization or use it for purposes other than those agreed in the contract.

(3) The contracting parties may terminate the contract without notice if the other contracting party violates their above obligations. Claims for damages as well as other claims or rights (e.g. according to the GeschGehG) remain unaffected. The confidentiality obligations remain in effect for a further period of 5 years after the end of the contract or termination.

(4) The contractor must return the documents provided to him by the client immediately after termination of the contract or, upon request, securely delete or destroy them. The contractor has no right of retention to these documents. Statutory retention obligations remain unaffected.

§ 13 Applicable law, Jurisdiction

(1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods). The German contract text is binding.

(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with the contract shall be Dinslaken, Germany.

(3) Changes, additions and additional agreements to the contractual relationship must be made in writing. This also applies to the change or cancellation of this written form clause. The legal invalidity of individual provisions does not affect the legal validity of all other provisions.