TERMS OF SALE & AND DELIVERY FOR MACHINERY, SYSTEMS,

　　SPARE PARTS AND ASSEMBLY

　　設(shè)備系統(tǒng)零配件及安裝條款

　　(注：這是一份適用德國法律的商務(wù)合同)

　　TABLE OF CONTENTS

　　I. General provisions 一般規(guī)定

　　II. Prices and payment 價格與支付

　　III. Delivery period, delivery delay 交付期限與延遲

　　IV. Transfer of risk, formal acceptance 風(fēng)險轉(zhuǎn)移與正式驗收

　　V. Retention of title 所有權(quán)的保留

　　VI. Installation and assembly 安裝

　　VII. Receipt 接收

　　VIII. Liability for defects 瑕疵責(zé)任

　　IX. Supplier liability, exemption from liability 供貨方的責(zé)任與責(zé)任豁免

　　X. Period of limitation 索賠時效期限

　　XI. Returned goods 退貨

　　XII. Disposal 處置

　　XIII. Software utilization 軟件使用

　　XIV. Applicable law and place of jurisdiction 適用法律與管轄地

　　For use in transactions with:

　　1. a person acting in a commercial or freelance professional capacity at the time the agreement is concluded (businessperson);

　　2. legal entities governed by public law and special trusts under public law.

　　I. General provisions

　　1. All deliveries and services shall be based on these conditions and on any separate contractual agreements. Differing purchasing conditions of the Purchaser shall not become part of the agreement even in the event of order acceptance.

　　Unless otherwise agreed, a contract shall come into effect on written confirmation of the order by the Supplier.

　　2. The Supplier shall retain title and copyright to samples, quotations, drawings and similar information of a tangible or intangible nature, including in electronic form; they may not be divulged to third parties. The Supplier undertakes to divulge information and documents designated as confidential by the Purchaser to third parties only with the Purchaser's consent.

　　3. Partial deliveries shall be permitted provided that they are not unreasonable for the Purchaser.

　　II. Prices and payment

　　1. Unless otherwise agreed, prices shall be ex works including loading at the factory but excluding packaging and unloading. Prices shall also be subject to VAT at the applicable statutory rate.

　　2. Unless otherwise agreed, payment shall be made to the Supplier's account without deductions as follows:

　　1/3 down payment after receipt of order confirmation; 1/3 as soon as the Purchaser has been informed that the main

　　components are ready for shipment; the remainder within one month after transfer of risk.

　　3. If the Supplier is responsible for assembly or installation, the Purchaser shall bear all required incidental costs such as travel, transport and allowances, in addition to the agreed purchase price.

　　4. For services, a payment target of 30 days net after invoice date without deductions is agreed.

　　5. The Purchaser shall only be entitled to offset payments with counterclaims from other legal relationships to the extent that such counterclaims are uncontested or legally enforceable.

　　6. Payments shall be ex paying agent of the Supplier.

　　7. If the agreed payment period is not adhered to, the Purchaser – provided that it is not the final consumer – shall be charged interest from that point onwards at an annual rate of 8% above the applicable discount rate of the German Central Bank. The Supplier retains the right to a claim of greater damages caused by delay; the Purchaser retains the right to prove that the Supplier has suffered minimal or no damages caused by delay.

　　III. Delivery period, delivery delay

　　1. The delivery period shall result from the agreements between the contracting parties. The Supplier's compliance with the delivery time shall be conditional on the resolution of all commercial and technical issues between the contractual parties and the Purchaser's fulfilment of all obligations such as procurement of all official certifications or approvals or a down payment. If this should not be the case, the delivery period shall be extended adequately. This shall not apply if the Supplier is responsible for the delay.

　　2. Compliance with the delivery period shall be subject to correct and timely delivery of supplies and materials. The Supplier shall provide notification of impending delays as soon as possible.

　　3. The delivery period shall be deemed to be complied with if the delivery item has left the Supplier's premises before its expiry, or if its readiness for shipping has been announced. Should formal acceptance be required, the acceptance date shall be applicable or, alternatively, notice of readiness for acceptance – except in cases of justified refusal of acceptance.

　　4. If shipment or acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, the Purchaser shall be charged for the costs resulting from the delay, starting one month after notification of readiness to ship or readiness for acceptance.

　　5. If non-compliance with the delivery period is a result of force majeure, strikes or other events over which the Supplier has no control, the delivery period shall be extended accordingly. The Supplier shall notify the Purchaser of the beginning and end of such conditions as soon as possible.

　　6. The Purchaser may withdraw from the agreement without notice if complete fulfilment by the Supplier becomes definitively impossible before the transfer of risk. Furthermore, the Purchaser may withdraw from the agreement if the fulfilment of part of the delivery for an order becomes impossible and the Purchaser has a justifiable interest in rejecting the partial delivery. Should this not be the case, the Purchaser shall pay the contractual price attributable to the partial delivery.

　　The same shall apply in the event of the Supplier's inability. Otherwise Section IX.2 shall apply.

　　In the event that the impossibility or inability arises during the delay in acceptance or if the Purchaser is solely or substantially responsible for these circumstances, the Purchaser shall be obliged to consideration.

　　7. If the Supplier is responsible for a delay resulting in damages to the Purchaser, the Purchaser shall be entitled to claim lump-sum compensation. This shall be in the amount of 0.5 % for each full week of delay but in total no more than 5 % of the value of that part of the complete delivery which, due to the delay, cannot be used on time or cannot be used in accordance with the contract.

　　If – in consideration of the statutory exceptions – after the due date the Purchaser specifies a reasonable deadline for fulfilment by the Supplier and the deadline is not met, then the Purchaser is entitled to withdraw in accordance with statutory regulations. The Purchaser undertakes, on request, to inform the Supplier within a reasonable period whether it intends to make use of its right to withdraw.

　　Further claims due to delayed delivery shall be governed exclusively by Section IX of these conditions.

　　IV. Transfer of risk, formal acceptance

　　1. The risk shall pass to the Purchaser when the delivery item leaves the factory, also in the case of partial deliveries or when the Supplier has assumed other obligations such as shipping costs or delivery and installation. Should formal acceptance be required, it shall be decisive to the transfer of risk. It must be performed without delay on the acceptance date or, failing that, after the Supplier's notification of readiness for acceptance. The Purchaser may not refuse acceptancedue to an inconsequential defect.

　　2. Should shipment or acceptance be delayed or fail to occur for reasons that are not attributable to the Supplier, the risk shall be transferred to the Purchaser on the date on which notification of readiness to ship or readiness for acceptance is given. The Supplier undertakes to take out insurance demanded by the Purchaser at the latter's expense.

　　3. Partial deliveries shall be permitted to the extent that they are not unreasonable for the Purchaser.

　　V. Retention of title

　　1. The Supplier shall retain title to the delivery item until all payments specified in the delivery contract – as well as any owed for additional ancillary services – have been received.

　　2. The Supplier shall be entitled to insure the delivery item at the Purchaser's expense against theft, breakage, fire, water and other damages insofar as the Purchaser has not demonstrably taken out such insurance on its own.

　　3. The Purchaser may neither sell nor pledge the delivery item, nor assign it as security. If the delivery item is pledged, seized or otherwise at the disposal of third parties, the Purchaser shall notify the Supplier thereof immediately.

　　4. In the event of the Purchaser acting in contradiction to its contractual obligations, especially in the case of delayed payment, the Supplier shall, after having issued an appropriate reminder, be entitled to take back the delivery item and the Purchaser shall be obliged to return it.

　　5. Due to retention of title, the Supplier shall only be entitled to demand the return of the delivery item after withdrawal from the contract.

　　6. A petition to initiate insolvency proceedings shall entitle the Supplier to withdraw from the contract and to demand an immediate return of the delivery item.

　　VI. Installation and assembly,

　　if assigned to the Supplier and insofar as no other written agreements have been reached.

　　1. The Purchaser shall be obligated to provide technical assistance for installation and assembly, in particular:

　　a) providing the necessary qualified personnel and conducting all earthwork, construction, foundation and scaffolding work, including procurement of the required construction materials and tools

　　b) providing the required devices and heavy-duty tools (such as lifting gear and required equipment and consumables such as lubricants and fuel) for installation and commissioning

　　c) providing heating, lighting, power and water and the required connections

　　d) providing necessary dry and lockable rooms for storage of tools belonging to installation personnel, machine parts, appropriate and theft-proof rooms for work and breaks (with heating, lighting, washing and sanitary facilities) and first aid for installation personnel

　　e) protective clothing and protective devices required by the special conditions present at the installation site

　　2. On its own initiative, the Purchaser shall provide information about the positions of all hidden supply lines (gas, water, electricity etc.) as well as structural information to the Supplier before the start of the installation work.

　　3. Prior to the beginning of installation or assembly, all required provisions must be present at the installation or assembly site. It must be possible to perform the installation or assembly without interruptions, and the approaches for transport must be suitable and accessible.

　　4. Should the work be delayed per Section VI. 3 or commissioning cannot take place in accordance with the contract, the Purchaser shall assume the reasonable costs of the Supplier.

　　5. The Purchaser shall inform the Supplier of the working hours of the installation personnel on a weekly basis and shall immediately confirm the completion of installation, assembly or commissioning.

　　6. The Purchaser is obliged to acceptance of the installation once the Purchaser has been notified of its completion. If acceptance is delayed due to no fault of the Supplier, acceptance shall be deemed to have occurred after 2 weeks have elapsed since notice of completion of installation was given. This shall also apply if the delivery – after completion of any agreed test phase – is put to use.

　　VII. Receipt

　　The Purchaser may not refuse to receive services because of negligible defects.

　　VIII. Liability for defects

　　The Supplier shall assume warranty for any material defects or defects in title in the delivery without further liability – except as stipulated in Section IX – as follows:

　　Material defects

　　1. All those parts that prove to be defective due to circumstances arising prior to the transfer of risk shall, at the Supplier's discretion, be repaired or replaced. The identification of such defects shall be reported to the Supplier in writing without delay. Replaced parts shall become property of the Supplier.

　　2. After consultation with the Supplier, the Purchaser shall allow the Supplier the necessary time and opportunity to carry out all the repairs and replacement deliveries considered necessary by the Supplier; the Supplier shall otherwise be exempt from any liability for the consequences resulting therefrom. Only in urgent cases of risks to operational safety or to avert disproportionately large damages, whereby the Supplier is to be informed of the aforesaid immediately, the Purchaser shall

　　be entitled to rectify defects itself or to have them rectified by third parties and to demand reimbursement from the Supplier of the expenses incurred.

　　3. Claims to repair, withdrawal and reduction shall be limited to a period of 12 months from the day of delivery as supported by an invoice or similar document, insofar as a longer period is not stipulated by statute. For spare parts, a warranty period of 12 months shall apply.

　　4. Should no replacement or repair be performed at the Supplier's discretion, the Supplier shall also bear the costs of removal and replacement as well as the costs of any required installation personnel, including travel expenses, provided that no disproportionate burden is imposed on the Supplier as a result.

　　5. For deliveries abroad, only the costs for supplied materials shall be assumed.

　　6. The Purchaser shall be entitled to withdraw from the contract in accordance with statutory regulations if the Supplier – in consideration of the statutory exceptions – fails to take action within a reasonable period of time granted by the Purchaser for repair or replacement due to a material defect. If the defect is only immaterial, the Purchaser shall only be entitled to reduction of the contract price. The right to reduction of the contract price shall otherwise be excluded.

　　7. Further claims shall be governed exclusively by Section IX.2 of these conditions.

　　8. No liability shall be assumed in the following cases in particular:

　　inappropriate or improper use, defective assembly or commissioning by the Purchaser or third parties, natural wear and tear, improper or careless handling, improper maintenance, unsuitable operational equipment, deficient construction work, unsuitable building ground, and chemical, electrochemical or electric influences insofar as they are not attributable to the Supplier.

　　9. Should the Purchaser or a third party make faulty improvements, the Supplier shall assume no liability for the consequences arising therefrom. The same shall also apply for any changes made to the delivery item without the Supplier's prior consent.

　　Defects in title

　　10. Should the use of the delivery item lead to infringement of any industrial property rights or copyrights in Germany, the Supplier shall, at its own cost, procure the right for the Purchaser to continue using the delivery item, or shall modify the delivery item in a manner acceptable to the Purchaser, such that the property rights are no longer infringed.

　　Should this not be possible under economically acceptable conditions or within a reasonable period of time, the Purchaser shall be entitled to withdraw from the contract. The Supplier shall also be entitled to withdraw from the contract under the aforementioned conditions. Furthermore, the Supplier shall indemnify the Purchaser against any undisputed claims or legally enforceable claims by the concerned holders of the property rights.

　　11. The obligations of the Supplier referred to in Section VIII.10 shall, with the exception of Section IX.2, be final and conclusive in the event of any infringement of property rights or copyrights.

　　They shall only apply:

　　. if the Purchaser immediately notifies the Supplier of any infringement of property rights and copyrights which have been asserted,

　　. if the Purchaser supports the Supplier to a reasonable extent in its defence against the asserted claims, or enables the Supplier to perform the modification measures referred to in Section VIII.10,

　　. if the Supplier retains the right to take all defensive measures including out-of-court settlements,

　　. if the defect of title is not attributable to an instruction given by the Purchaser and

　　. if the infringement was not caused by the Purchaser performing unauthorised modifications on the delivery item, or using itin a manner not in compliance with the contract.

　　Special warranty for commercial refrigeration for the GEK serie

　　1. All statutory and contractual claims by the Purchaser which have a basis in product defects shall lapse within 24 months from delivery.

　　2. For warranty claims in Germany, customer service costs (Bosch und Siemens Hausger.te customer service) are assumed.

　　3. For warranty claims abroad, the Supplier shall assume the costs for materials and transport.

　　IX. Supplier liability, exemption from liability

　　1. If the delivery item cannot be used as stipulated in the agreement as a result of culpably omitted or faulty proposals or consultations which occurred before or after conclusion of the agreement, or due to culpable violation of other subsidiary contractual obligations, particularly instructions for operation and maintenance of the delivery item, the regulations in Sections VIII and IX.2 shall apply.

　　2. Regardless of legal grounds, the Supplier shall only be liable for damages other than to the delivery item itself:

　　a. in the event of wilful intent,

　　b. in the event of gross negligence on the part of the proprietor, the executive bodies or senior managers,

　　c. in the event of culpable injury to life, body or health,

　　d. in the event of defects which it has maliciously concealed,

　　e. within the scope of a guarantee,

　　f. in the event of delivery item defects, to the extent that liability is provided under the German Product Liability Act for personal injury and property damages caused to items used for private purposes.

　　In the case of culpable violation of essential contractual obligations, the Supplier shall also be liable for gross negligence of non-managerial employees and simple negligence, the latter being limited, however, to damage or loss which is reasonably foreseeable in connection with contracts of this type.

　　Any further claims shall be excluded.

　　X. Period of limitation

　　Regardless of their legal grounds, all claims by the Purchaser shall lapse after 12 months. For compensation claims according to Section IX.2 a–d and f, the statutory periods shall apply. They shall also apply in the case of defects in a building or for delivery items that were used for a building in accordance with their normal usage and have caused its defectiveness.

　　XI. Returned goods

　　Returns not based on a legal claim shall be permitted only if the goods are in their original packaging and in brand-new condition and the Supplier has agreed to the return in writing. The organisational details for processing returns are described in "Returned goods organisation". The document is available at http://www.riedel-cooling.de/downloads.

　　XII. Disposal

　　The Purchaser, to the extent permitted by law, assumes the obligation to dispose of the delivered goods after termination of use at its own cost and in compliance with legal regulations.

　　XIII. Software utilisation

　　If software is included in the scope of supply, the Purchaser shall be granted a non-exclusive right to use the delivered software, including its documentation. It shall be provided for use with the delivery item intended for the purpose. Utilisation of the software on more than one system shall be prohibited.

　　The Purchaser shall only copy, revise or translate the software, or convert it from the object code to the source code to the extent permitted by law (§§ 69 a et seq. of the German Copyright Act). The Purchaser agrees not to remove the manufacturer's specifications – especially the copyright references – nor to change them without the express prior consent of the Supplier.

　　All other rights to the software and the documentation, including copies thereof, shall remain with the Supplier or with the software supplier. Granting of sublicenses is not permitted.

　　XIV. Applicable law and place of jurisdiction

　　1. The law of the Federal Republic of Germany applicable to the mutual legal relationships between domestic parties shall be exclusively valid for all legal relationships between the Supplier and the Purchaser.

　　2. The place of jurisdiction shall be that of the Supplier's headquarters. However, the Supplier shall be entitled to institute proceedings at the Purchaser's headquarters.