General Terms and Conditions as of: 01/01/2007

I. Scope of Application
All deliveries and services of ATL shall take place exclusively on the basis of the present General Terms and Conditions (GTC), if and insofar as the party to the contract is an entrepreneur or a legal entity under public law or is a public sector fund. In this case an entrepreneur shall be considered to be the person who, upon concluding the agreement, acts on the basis of their commercial or self-employed professional activity. Any differing provisions, in particular any general terms and conditions of contractual partners, shall apply only if ATL expressly agrees to these in writing before the agreement is concluded. This shall also apply in the event that ATL has not objected to the general terms and conditions of contractual partners in individual cases. The GTC in their latest version shall apply both to the present business transaction as well as to all future business transactions.

II. Orders and acceptance of orders
1. All orders received by ATL directly from the purchaser require acceptance by means of a written order confirmation, except in the case of cash transactions.

2. Deviations in the ordered or supplied goods from the purchase order, especially regarding the material and design, are expressly reserved within the scope of technical progress.

III. Prices and payment
1. In the absence of a separate agreement, the prices shall apply ex works including loading at the works but excluding the costs of packaging, shipping and/or customs, which will be itemised separately in the invoice. The prices are exclusive of sales tax which will be added at the respective statutory rate.

2. ATL reserves the right to adjust the prices commensurate with its own increase in costs if following conclusion of the contract cost increases occur, in particular due to wage cost increases, for example as a result of collective pay agreements, or due to changes in the price of materials. Evidence of this will be provided to the purchaser upon request.

3. Unless agreed to the contrary, invoices from ATL are payable in full within 30 days of the date of the invoice.

4. Field staff may only accept payments if authorised to do so by means of a written power of attorney.

5. All claims of ATL become immediately due and payable if the purchaser does not fulfil the payment conditions or ceases to make payment for reasons for which the purchaser is responsible.

6. Moreover, ATL is entitled to demand payment in advance for pending deliveries, and –  following a reminder and appropriate period of grace –  to withdraw from the contract or to claim compensation for non-performance.
Following a reminder and the setting of an appropriate period of grace, the purchaser may be forbidden to resell the goods and the goods supplied may be fetched back at the cost of the purchaser.
7. The retention of payments or the setting off of payments against counterclaims of the purchaser is excluded insofar as this has not expressly been agreed by ATL in writing or has not been legally determined.

IV. Delivery period; delivery delay
1. Delivery periods and dates are binding insofar as they have been confirmed in writing by ATL as a “binding delivery date”.

2. Compliance with the delivery deadline shall be subject to the correct and timely delivery to ATL itself. ATL shall provide notification of any foreseeable delays as soon as possible.

3. The delivery period shall be considered as complied with if the delivery item has left the ATL works or readiness for dispatch has been notified prior to the elapse of the delivery period. Insofar as an acceptance procedure is to take place and unless such acceptance is refused for good reason, the date of acceptance shall be decisive for compliance, alternatively the notification of readiness for acceptance.

4. Should non-compliance with the delivery period result from force majeure, labour conflicts or other events which lie beyond the control of the supplier, the delivery period shall be extended appropriately. The supplier shall inform the purchaser of the commencement and the end of such circumstances as soon as possible. However, should these circumstances last longer than six (6) weeks or should it not be possible for ATL to perform its services as a result of such event, both the purchaser and ATL shall be entitled to withdraw from the contract. Furthermore, in the event of default for which ATL is responsible, the purchaser shall only be entitled to assert further rights once an additional period of at least three (3) weeks, set by the purchaser after the default has occurred, has expired without result.

5. Claims for compensation asserted by the purchaser for default are excluded insofar as
neither ATL, nor its representatives or agents have acted wilfully or with gross negligence in any particular case. In any event claims for compensation shall be limited to the amount of the contractual damages.

V. Shipping
1. The goods are shipped even for partial deliveries at the account and risk of the purchaser. This shall also apply in the event that ATL assumes the freight costs in any individual case. The risk shall be transferred to the purchaser when the goods are handed over to the carrier/forwarder.

2. Freight costs shall not be advanced. Transport is carried out by a forwarder/carrier chosen by ATL at its discretion without any obligation to select the lowest cost shipping. ATL shall not assume any risk of transport through its choice of forwarder/carrier.

3. In the event of exportation of the goods purchased, the purchaser shall procure all the documents required for export (for example, export licence and customs authorisation etc.) at the purchaser’s own cost. ATL shall not be liable for the legal authorisation to export the goods or for their compliance with the legal and technical rules and regulations of the country of import. Furthermore, ATL shall not be liable for the goods complying with the technical standard in the country of importation.

4. The costs of external packaging, packing cases or special boxes invoiced to the purchaser will be credited to the purchaser at two-thirds (2/3) of their value, in the event of return carriage paid, insofar as they reach ATL in Arnsberg in good condition and can be used again for the purposes for which they are suited.

VI. Liability for material defects
1. The purchaser is obligated to inspect the goods delivered immediately upon receipt and shall inform the supplier of any visible defects without delay (at the latest within two working days of delivery) in writing. Defects that are only notified later, that is, after the expiry of the time period stated above, shall not be considered by ATL and shall not be covered by the warranty. Notifications of defects will only be considered as such by ATL if they are notified in writing. Notifications of defect that are made to field staff or the carrier or any other third party shall in no way be considered as warranty claims.

2. In the event of justified and timely notice of defects, ATL shall remedy the defect at its discretion as a rule by the cost-free delivery of a replacement or by repair (supplementary performance). Any additional costs that are incurred shall not be reimbursed. Moreover ATL has the right in the event that the attempt to remedy the defect comes to nothing to make a second attempt to remedy the defect again at its own discretion.  Should it not be possible to make a second attempt or should the second attempt come to nothing or should it not be carried out within an appropriate deadline set by the purchaser, which must be a minimum of three (3) weeks, the purchaser has the right to withdraw from the contract or to reduce the purchase price. This shall also apply if ATL refuses the supplementary performance due to disproportionately high costs. To determine the disproportionate costs of supplementary performance reliance will be placed in particular on the relation between the value of the purchased goods free of defects and the costs incurred by supplementary performance.

3. Claims for defects shall not exist if the defect is caused by breach of regulations on use, maintenance or installation, by unsuitable or improper use, incorrect or negligent handling, normal wear and tear or by improper interference in the purchased object by the purchaser or by a third party.

4. Details in catalogues, specifications and other product descriptions shall only be understood to be guarantees of quality or durability if they are expressly characterised as such individually in writing.

5. Insofar as this is not expressly provided otherwise by statute, the purchaser’s claims for material defects for new and remanufactured products shall expire within two years and for used products one year from delivery of the object.

6. The purchaser shall only be entitled to compensation claims for defects of goods delivered to the extent provided for in Section VII of these terms and conditions (compensation claims).

VII. Compensation claims
1. Insofar as ATL has caused damage due to slight negligence, a claim for damages shall only arise on the basis of statutory provisions in the event of breach of an essential contractual duty. The claim for damages shall be limited to damage typical for the contract. This limitation shall not apply to damages which relate to health effects, human injury or loss of life.

2. This shall not affect any possible liability of ATL in the event of fraudulent concealment of a defect, or resulting from acceptance of a guarantee or procurement risk, and in accordance with the product liability act.

3. Personal liability of the legal representatives, agents and employees of ATL for any damage caused by them due to slight negligence remains excluded.

VIII. Right of retention
1. ATL shall retain title to all the goods delivered by ATL until the purchase price has been paid in full and until all claims arising out of the business relationship have been settled in full. (Extended retention of title).

2. In the case of a current account the retained title shall represent the security for the balance claim of ATL.

3. Any kind of disposal by the purchaser of goods which are subject to retention of title shall only be permitted within the purchaser’s ordinary course of business.
In no event may title to the goods be transferred to a third party as security within the scope of the ordinary course of business.
4. Should the purchaser combine the goods with other objects to form a single object and if the other object is to be considered the main object, the purchaser shall assign co-ownership to ATL pro rata to the extent the main object belongs to the purchaser.

5. In the event of the sale of the goods in the ordinary course of business the purchase price paid shall replace the goods. The purchaser assigns any possible claims arising out of any possible disposal of the goods against his customers with all ancillary rights to ATL until all of its claims have been settled in full. The purchaser shall be authorised to collect this claim as long as he meets his payment obligations to ATL. In the event of just cause (for example delayed payment) at the request of ATL the purchaser is authorised to view and check the sales documents of the customer and to inform his buyer of the assignment.

6. If the purchaser’s claim from the resale has been included in the current account, the purchaser hereby assigns his claim from the current account against his buyer to ATL. The assignment shall be made in the amount that ATL had billed the purchaser for the resold retained goods.

7. In the event of any attachment of the goods at the purchaser’s, ATL shall be informed immediately by sending a copy of the compulsory execution record and a statutory declaration in lieu of oath that the goods attached were the goods delivered by ATL and are goods subject to a retention of title.

8. Should the value of the securities pursuant to the above sub-clause of this clause exceed the amount of the outstanding claims secured hereby for the foreseeable future by more than 20% the purchaser is entitled to demand that ATL release securities in the amount by which these securities exceed the debts.

9. ATL retains title and copyright to samples, cost estimates, drawings and similar information, both tangible and intangible, including in electronic form, and access to such must not be granted to third parties. ATL undertakes to make accessible to third parties information and documents designated as confidential by the purchaser only with the latter’s permission.

IX. Rescission
1. Should one of the parties to the contract cease to make payments or should insolvency proceedings against his assets or  judicial or out-of-court composition proceedings be instituted, the other party to the contract shall be entitled to withdraw from the contract for the non-fulfilled part of the contract.

X. General
1. The place of performance and the place of jurisdiction for all disputes arising either directly or indirectly out of the contractual relationship shall be Arnsberg. ATL shall also be entitled to file suit with any other court of competent jurisdiction.

2. ATL is entitled to save and process data from the purchaser for the purposes of processing the business transactions taking into due account the provisions of the Federal act on data protection.

3. The laws of the Federal Republic of Germany shall apply exclusively insofar as nothing has been expressly agreed to the contrary. The application of the United Nations convention of 11 April 1980 on the international sale of goods shall be excluded.

4. Should any provision of these general terms and conditions or of other terms agreed be or become void, this shall not affect the validity of the remaining provisions.
The contractual partners shall replace any invalid provision by a provision that comes as close as possible to permitting the same economic success.

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