Secop Terms and Conditions of Sale

Version 1.01 – 1st July 2011 

These General Terms and Conditions of Sale (”Terms”) apply to all deliveries of products and services (”Products”) from Secop GmbH or other Secop Group Companies (each of which is referred to as ”Secop”) to any customer (”Customer”). In these Terms ”Secop Group Company” shall mean an entity directly or indirectly controlled by Secop Holding GmbH whether by shares or voting rights as well as any sister company of Secop Holding GmbH.

No terms and conditions other than the Terms shall be binding upon Secop and Customer unless agreed in writing by Secop and Customer. All terms and conditions contained in any prior communication which are different from or go beyond the provisions of these Terms shall not be binding on Secop unless otherwise agreed in writing by Secop and Customer.

1. Confirmation of Order
Secop shall not be deemed to have accepted a purchase order until written, including electronic, confirmation of the order from Secop is received by Customer or Secop has received written, timely and unconditional acceptance from Customer of Secop’s quotation. 

2. Terms of Delivery
a) All Products are delivered ex-works (EXW in accordance with the Incoterms valid at the time of acceptance of the purchase order or quotation) to Customer at Customer’s sole risk and expense, unless otherwise expressly stipulated. Secop may in its sole discretion choose the transport method and select the carrier.

b) The Customer shall notify Secop, in writing, of all obvious defects in the delivery and services without undue delay following Customer’s receipt of such deliveries or services, otherwise the assertion of warranty claims is excluded. In case of hidden defects, Customer shall inform Secop without undue delay in writing after discovery of such hidden defects.

3. Delay
If Secop does not deliver at the agreed time, Customer is entitled to request delivery in writing and fix a final, reasonable time limit for delivery. If delivery is not made within this time limit and in the event such delay is caused by Secop, Customer is entitled to compensation for its documented, direct loss. No further claims can be made by Customer as a result of the delay.

4. Prices
Prices quoted are net ex-works (EXW in accordance with the Incoterms valid on the time of acceptance of the purchase order or quotation) unpacked and subject to VAT or other taxes (unless specifically stated to the contrary). Secop reserves the right to adjust prices for non-delivered Products in the event of alterations in rates of exchange, variations in costs of materials, sub-suppliers’ price increases, changes in wages, state requisitions or similar conditions over which Secop has no or limited control.

5. Terms of Payment and Default of Payment
All invoices shall be paid within 30 days from the date of invoice (the “Due Date”) unless expressly agreed otherwise. Secop my charge interest on any sums still outstanding on the Due Date at an interest rate of 10% points above EURIBOR 3 months. However, Secop may prove that it encountered a higher damage and Customer may prove that the actual damage of Secop is lower. In the event of the Customer’s default of payment within the meaning of Section 286 of the German Civil Code (“Bürgerliches Gesetzbuch – BGB”) with regard to one single payment, all other Customer’s pending payments shall become automatically due for payment without any prior notice by Secop. With regard to any accounts payable to customers abroad, the Customer shall bear all judicial costs and out of court expenses resulting from the assertion of rights due to his default of payment.

6. Retention of Title
a) All Products shall remain the property of Secop until paid for in full. Pending payment of the full purchase price, Customer shall at all times keep the Products comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by Customer and in an amount at least equal to the balance of the purchase price that remains outstanding from time to time. In addition, Customer undertakes not to pledge any of the Products that remain the property of Secop by way of security. 

b) If Customer processes or transforms the Products Secop and Customer shall be regarded as manufacturers of the Product; Secop will acquire co-ownership of the new article in the ratio between the invoice value of the Product and the value of the end product. If Customer connects, mixes or mingles the Products with any objects that are not owned by Secop, Secop shall become co-owners of the new article in the ratio between the value of the Products and the value of the objects not owned by Secop. The provisions of this clause shall apply accordingly to the new article resulting from the processing, transformation, connection, mixing or mingling.

c) Until Customer has paid for the Products in full: (i) Customer shall keep the Products owned by Secop as well as the articles which Secop is a co-owner, in custody free of charge; (ii) Customer may with prior written consent of Secop sell such items in the ordinary course of business, but only against cash payment or subject to a retention of title; (iii) Customer is not entitled to make any other dispositions such as transfers by way of security or pledging. Secop may withdraw the sales authority to Customer by written notice to Customer if Customer is in breach of any obligation owed to Secop (in particular in default of payment) or Secop becomes aware of other incidents that give rise to doubts about the Customer’s creditworthiness. 

d) Customer assigns to Secop all claims arising from the resale within the meaning of this clause (“Retention of Title”). Secop hereby accepts such assignment. Notwithstanding Secop’s right to claim direct payment, Customer shall be entitled to receive the payment on the assigned claims. To this end, Secop agrees not to demand payment on the assigned claims to the extent 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 payments.

e) In the event of any third party action against Secop’s Products delivered under retention of title, Customer shall notify such party of Secop’s property and immediately inform Secop about such action. Customer shall bear the costs of any intervention.

7. Product Information
Any information – irrespective of derivation from Secop or a Secop business contact – including, but not limited to information on weight, dimensions, capacity or any other technical data in catalogues, descriptions, advertisements, etc. shall be considered informative, and are only binding if and to the extent explicit reference on this is made in an offer and/or order confirmation.  Specific demands from the Customer shall only be binding if and to the extent they have been confirmed by Secop in writing.

8. Proprietary Information and Confidentiality
Any non-public information, including but not limited to prices, drawings, descriptions and any technical documents which Secop has made or may make available to Customer (”Confidential Information”) shall remain the property of Secop and shall be treated as confidential by Customer and its representatives and must not, without the written consent of Secop, be copied, reproduced, or transferred to third parties or be used for other purposes than those intended when the Confidential Information was made available. Confidential Information shall be returned to Secop upon request.

9. Alterations
Secop reserves the right to make alterations to the Products, which do not materially affect agreed specifications or the Products’ form, fit or function, without notice.

10. Warranty
a) In this clause, “Warranty Period” shall mean the period beginning on the date of delivery of the Products and ending 12 months thereafter, except to the extent Secop specifies another warranty period in writing. In the event that the exact date of delivery cannot be reconstructed by either party, the date stamped on the Product plus a time period needed for shipment of the Product under ordinary circumstances shall be used as prima facie evidence.

b) Secop warrants that the Products will be free from material defects caused by faulty manufacture, design and/or defective materials during the Warranty Period (the “Warranty”). In case of delivery of defect Products Secop will, in its sole discretion, replace or repair the defective Products. In case of a definite failure of replaced or repaired Products, Customer is entitled to claim for a reduction of the purchase price or may withdraw from the contract. In case of minor defects of the Products Customer is not entitled to claim for replacement or repair of the Products or to withdraw from the contract and/or to claim for damages.

c) If defects occur within the Warranty Period, the Product shall be forwarded to Secop together with a written notice describing the reason for returning the Product. Freight and insurance shall be paid by Customer. Products returned shall be free of extraneous equipment. However, compressors must be fitted with their electrical equipment. Secop will reply to Customer stating whether it accepts warranty liability pursuant to sub-clause b) above and indicating what action it proposes to take (which action may include further investigations by Secop’s service engineers) and if it transpires that the defect is not covered by a breach of Warranty, then Secop reserves the right to make a reasonable charge for such investigations.

d) If Secop’s examination shows that the Product is not faulty, the Product shall be returned to Customer. Freight and insurance shall be paid by Customer. If Secop ascertains that the Product is faulty, Secop shall send the repaired or a replacement Product to Customer. Secop may choose the method of dispatch and pays freight and insurance. Products or product parts which have been replaced shall be the property of and retained by Secop. 

e) Secop shall be under no liability for any breach of Warranty: (i) unless the Products have been properly installed, used, maintained and serviced, (ii) unless Customer pursuant to Section 2 lit. b) hereof has informed Secop without undue delay following the receipt of the Product or – in case of hidden defects – the discovery of the defect alleged within the Warranty Period; (iii) in respect of wearing and consumable parts; (iv) to products or parts thereof not manufactured by Secop.

11. Assignment of Accounts Receivables
Secop shall be entitled to assign its accounts receivables for financing purposes to any third party without the prior written consent of the Customer.

12. No set-off
The Customer shall only be entitled to set off liabilities with its own counterclaims if these counterclaims are undisputed by Secop or have been determined finally and legally binding. 

13. Intellectual Property Rights
If the Product is delivered with embedded software, Customer obtains a non-exclusive software license in form of a right of use to the software solely for the purposes set out in applicable specification of the Product. Customer shall not obtain any rights to source codes to such software. Aside from this, Customer obtains no rights in form of license, patent, copyright, trademark or other proprietary right connected to the Products.

14. Limitation of Liability, Indemnification and Force Majeure
a) To the extent permitted by applicable law and without prejudice to clause 14 lit. c) hereof, Secop shall in no circumstances be liable to Customer to the extent that such liability: (i) is calculated by reference to profits, income, production or accruals or loss of business, loss of data, loss of profits, loss of goodwill, loss of anticipated savings, loss of revenue; (ii) arises from any inaccuracies or omissions in any instructions, information, drawings, calculations, or specifications or material supplied by Customer to Secop; (iii) is of a special, incidental, indirect, consequential or exemplary nature; (iv) is recovered by Customer under the terms of any insurance policy (apart from any excess applicable to the relevant insurance); or (v) has been made good or is otherwise compensated without cost to Customer.

b) To the extent permitted by applicable law and without prejudice to clause 14 lit. c) hereof, except for the limited remedies provided above in clause 10 hereof, Secop grants no warranties or conditions, express or implied in any communication by Secop to Customer, or otherwise, regarding the Products. All warranties, conditions, representations and terms, express or implied, whether by statute, common law or otherwise, shall, to the extent permitted by law, be excluded by these Terms.

c) Nothing in these Terms shall exclude or limit Secop’s liability where there is mandatory liability (e.g. according to the law on product liability) or in the event of wilful misconduct, gross negligence, injury to life, body or health or the infringement of substantial contractual obligations.

d) Customer shall indemnify Secop against all actions, suits, claims, demands, costs, charges, damages, losses and expenses suffered or incurred by Secop and/or for which Secop may be liable to any third party due to, arising from or in connection with, directly or indirectly: (i) Customer’s instructions or lack of instructions; (ii) any failure or delay whatsoever in taking delivery or any other act, neglect or default on the part of Customer, its servants, agents, or employees; or (iii) the breach of any provision of these terms by Customer.

e) Customer shall indemnify and keep Secop indemnified against all costs, claims, losses, expenses and damages incurred by Secop or for which Secop may be liable to any third party due to or arising directly or indirectly out of any infringement or alleged infringement of patents, trademarks, copyrights, designs, rights or other intellectual property rights occasioned by the import, manufacture or sale of the Products if made to the specification or special requirement of Customer.

f) Secop is entitled to cancel orders or suspend delivery of Products and shall not be liable for any non-delivery, faulty or delayed delivery which is partly or wholly caused by circumstances beyond Secop’s reasonable control, including, but not limited to riots, civil unrest, war, terrorism, fire, insurrection, requisition, seizure, embargo or defects or delays in deliveries by sub-contractors, strikes, lockouts, slow downs, lack of transportation, scarcity of materials, sickness accidents in product testing, and insufficient supplies of energy. Any of Customer’s contractual rights are suspended or become void in any such circumstances referred to in this clause. Customer is not entitled to any kind of damages or to make a claim whatsoever in case of cancellation or delayed delivery due to such circumstances. 

15. Severability clause
If one or more of the terms and conditions in these Terms or any part of a term is deemed illegal, invalid, inoperable or unenforceable under any applicable law the validity, enforceability, legality or operability of the remaining terms and conditions shall not be affected or diminished thereby. The illegal, invalid, inoperable or unenforceable provision shall be deemed replaced by such legal, valid, effective and enforceable provision as comes closest to the economic intent and purpose of such illegal, invalid, inoperable or unenforceable provision as regards subject-matter, amount, time, place and extent. The aforesaid shall apply mutatis mutandis to any gap in these Terms.

16. Governing law and Disputes
Any dispute between the parties arising from or in connection with a purchase agreement governed by these Terms shall be governed by German law without reference to its conflict of law principles. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. 

Any dispute arising from or in connection with a purchase agreement governed by these Terms and which the parties themselves are unable to resolve shall be referred to and settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce, Paris (“Rules”) by one or more arbitrators appointed in accordance with said Rules. Either party shall be entitled to seek injunctive or interim relief or any other temporary measures. The arbitral award shall be final and binding upon the parties. The parties may refer the enforcement of any arbitral award to any competent court. The seat of arbitration shall be Hamburg, Germany. English shall be the language to be used in the arbitration proceedings unless otherwise agreed between the parties. The arbitration proceedings and the arbitral award shall be confidential and involved persons on both sides shall be pledged to secrecy.

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Terms and Conditions of Sale

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