General terms and conditions of sale and delivery

1. Scope of application / Incoterms® 2010
1.1 The following Terms and Conditions of Sale and Delivery, which you (hereinafter referred to as “Customer”) accept by placing your order, shall apply to the business relationship between the Customer and the company Propulsion Engineering GmbH, (hereinafter referred to as “Propulsion”).

1.2 Customers can only be entrepreneurs. Entrepreneur is any natural

or legal entity or a partnership with legal capacity, which acts in the exercise of its commercial or independent professional activity when concluding a legal transaction (§ 14 BGB).

1.3 If the parties agree on the applicability of individual clauses of Incoterms® 2010 at the time of conclusion of the contract, the clauses of Incoterms® 2010 shall prevail in case of contradictions between the agreed clauses of Incoterms® 2010, which have thus become part of the contract, and the provisions of these General Terms and Conditions.

2. Conclusion of contract / offer documents
2.1 Offers made by Propulsion are non-binding and subject to change. A contract between Propulsion and the Customer shall be concluded only after Propulsion has confirmed the Customer’s order in writing (e-mail is sufficient).

2.2 The delivery to be made by Propulsion shall be subject to complete and timely delivery to Propulsion. If the ordered goods are no longer available and/or can only be procured with unreasonable effort, Propulsion is entitled to withdraw from the contract. In this case, Propulsion shall immediately notify the Customer of the unavailability and refund any payments received for the goods concerned. This shall not affect Propulsion’s liability for intent or negligence in accordance with the liability provisions set forth in Section 13 of these GTC. A right of withdrawal shall also exist if Propulsion becomes aware of the objective lack of creditworthiness of the Customer after conclusion of the contract and Propulsion’s claims for payment are jeopardized as a result.

2.3 In the case of planning services provided by Propulsion, Propulsion shall have sole ownership and copyright of the plans, illustrations, drawings, calculations and other documents. If agreed, Propulsion shall grant the Customer a non-exclusive and non-transferable right of use for the contractually intended purpose in return for payment of the fee to be paid for this purpose.

2.4 The contractual language shall be German, unless otherwise agreed on the basis of our order confirmation.

3. Delivery / deviations / cross-border transactions
3.1 The delivery periods agreed upon at the time of the order shall apply.

3.2 If delivery of the goods by Propulsion is agreed, this shall only include one-time delivery of the goods behind the first lockable door at the place of delivery, unless otherwise agreed in writing. Delivery shall be made by Propulsion itself and/or by a carrier to be selected by Propulsion to the delivery address specified by the Customer at the time of the order, unless otherwise agreed. The customer must ensure that the delivery can be carried out without hindrance due to circumstances for which the customer is responsible. If, for reasons beyond Propulsion’s control, it is necessary to make multiple trips on multiple dates, the expenses incurred beyond the one-time delivery will be invoiced separately in accordance with the agreed shipping charges.

3.3 Propulsion shall be entitled to make partial deliveries for justified reasons, provided this is reasonable for the Customer. Information provided by Propulsion on the subject matter of the service or delivery (e.g. illustrations, dimensions, weights or other data) shall only be approximate unless usability for the contractually intended purpose requires exact conformity. These details are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations customary in the trade and deviations that represent technical improvements or are made on the basis of legal regulations and/or replacement by equivalent products are permissible insofar as the usability for the contractually intended purpose is not impaired. 3.5 German foreign trade regulations shall apply to all business transactions with Propulsion.

4. Change requests
As long as services have not yet been handed over to the customer, the customer shall be entitled to make written proposals for changes to the contractually agreed service requirements (hereinafter: “change requests”). If the Customer requests any changes, Propulsion shall consider them in accordance with the following provisions and submit an offer to the Customer on the possible implementation of the change. If the Customer’s change requests lead to a change in the processing effort and to a change in the originally agreed deadlines, Propulsion and the Customer shall negotiate a corresponding supplementary agreement that takes these changes into account. Without such a new contract, Propulsion shall not be entitled to implement the changes. If Propulsion recognizes that the work to be performed between the receipt of the request for change and the conclusion of the relevant supplementary agreement is not usable in the event of implementation of the change, Propulsion shall notify the Customer thereof. If in this case the Customer instructs Propulsion to carry out or check the change request, Propulsion shall be entitled to suspend further processing of the order in all other respects. Any additional expenses incurred as a result shall be borne by the customer. Performance dates shall be extended appropriately.

5. Duties to cooperate
The customer shall perform the necessary and reasonable duties to cooperate without special compensation in a professional, qualitative, timely and organizational manner in accordance with the plan. The customer’s obligations to cooperate are primary obligations. If the Customer fails to fulfill its obligations to perform and cooperate fully, properly or in a timely manner, any agreed performance dates for Propulsion shall be extended accordingly. The Customer shall in particular

Grant access to the operating rooms in which work is to be carried out, provide professionally suitable personnel for the necessary tests within the framework of acceptance in good time and in sufficient numbers,
provide auxiliary and operating materials such as electricity, compressed air free of charge upon Propulsion’s request, provide required technical documentation,
designate a technically competent contact person.

6. Transfer of risk
The risk is transferred to the customer when the goods are handed over to the forwarding agent, carrier or other person designated to carry out the shipment. If the shipment or handover is delayed at the request of the customer or as a result of a circumstance for which the customer is responsible, the risk shall pass to the customer upon notification of readiness for shipment.

7. Acceptance of work performance
7.1 Insofar as Propulsion provides work services, Propulsion shall hand over the work produced to the Customer upon completion. If the Work is already in the Customer’s possession or access, Propulsion shall hand over the Work by written notice.

7.2 The Customer shall be obliged to accept the Work produced in accordance with the Contract, unless acceptance is excluded due to the nature of the Work. Acceptance cannot be refused due to insignificant defects. The Customer shall declare acceptance to Propoulsion in writing by means of an acceptance protocol and, upon Propulsion’s written request, provide a certificate of acceptance and the exact date of acceptance.

7.3 Acceptance shall be deemed to have taken place if the Customer fails to accept the Work within a reasonable period of time specified by Propulsion, although he is obliged to do so. Acceptance shall also be deemed to have taken place if the customer has expressly declared acceptance of the contractual performance and/or has put the contractual performance into use without express written reservation. 7.4 Acceptance may only be refused if the service handed over by Propulsion deviates in material respects from the contractually agreed service. In case of rejection due to existing serious deviations from the contractually owed services, Propulsion shall eliminate the deviations within a reasonable period of time after notification by the Customer. After elimination of the deviations, the acceptance shall be performed again in accordance with the aforementioned provisions.

8. Prices / payment / rights of set-off and retention
8.1 The prices quoted by Propulsion in offers are in principle net prices and are exclusive of VAT. of the respective applicable statutory value added tax. Unless otherwise agreed, prices do not include packaging, freight, postage, customs duties, insurance, assembly and other shipping costs. Unless otherwise stated in the order confirmation, Propulsion’s prices are “ex works”.

8.2 The payment options and modalities agreed upon conclusion of the contract shall apply, including any advance payment provisions. Unless otherwise agreed, payments shall be made without deduction immediately upon receipt of the invoice.

8.3 The customer shall only have a right of set-off if his counterclaims are undisputed or have been finally determined by a court of law or are at least ready for a decision. Rights of retention may only be asserted on the basis of counterclaims arising from the same contractual relationship.

8.4 The Customer agrees to an invoice transmitted electronically.

9. Warranty
9.1 Warranty claims of the customer require that the customer carefully inspects the goods immediately after delivery and notifies Propulsion of any defects in writing immediately after delivery. Defects hidden upon delivery must be reported by the customer in writing immediately after their discovery.

9.2 If the Customer is entitled to make a claim based on a defect, Propulsion shall be entitled, at its own discretion, to remedy the defect free of charge for the Customer or to deliver defect-free goods as a replacement.

9.3 If subsequent performance fails or is unreasonable for the Customer, or if Propulsion refuses subsequent performance, the Customer shall be entitled, in the case of purchase contracts, to withdraw from the contract, to reduce the remuneration or to demand damages in lieu of performance or reimbursement of its futile expenses. In the case of contracts for work and services, if subsequent performance fails or is unreasonable for the Customer or Propulsion refuses subsequent performance, the Customer shall be entitled to remedy the defect itself and demand reimbursement of the necessary expenses, to withdraw from the contract, to reduce the remuneration or to demand damages in lieu of performance or reimbursement of its futile expenses. §13 remains unaffected by this.

9.4 The warranty shall be excluded if the Customer has made changes to the goods without Propulsion’s express prior written consent, unless the Customer can prove that the changes are unrelated to the material defect that has occurred and/or do not significantly complicate an analysis of the material defect.

9.5 Warranty claims shall become statute-barred within 12 months from the date of transfer of risk, in the case of work performance from the date of acceptance. This shall not apply in the event of delivery recourse pursuant to. §§ 478, 479 BGB (German Civil Code) and/or insofar as the respective defect was fraudulently concealed and/or insofar as Propulsion has assumed special guarantees in the form of a manufacturer’s warranty.

9.6 The above shortening of the limitation period shall also not apply to claims for damages for which Propulsion is liable under the provisions of Clause 13 below. 9.7 The assignment of warranty claims is only possible with Propulsion’s written consent.

10. Product monitoring obligations
The Customer shall fulfill all product monitoring and product warning obligations incumbent upon it and shall inform Propulsion immediately in writing if it becomes apparent that a product poses a risk. In the event that Propulsion is held liable by third parties for a breach of product monitoring and/or product warning obligations, and the liability is due to a breach of the product monitoring and product warning obligations by the Customer, the Customer shall indemnify Propulsion against all third party claims, including any legal defense costs.

11. Product specific features / deviations / trade customs / obligation customer
11.1 Minor deviations of the manufactured and delivered products from the order shall not be considered as defects in the cases described below and therefore cannot be complained about:

Dimensional deviations within the tolerances of DIN ISO 2768
Deviations of the alignment within the specifications of the machine/coupling manufacturers. Measurement deviations due to the surface condition of the measurement object Measurement deviations due to insufficient accessibility / environmental conditions during measurement.

11.2 The customer shall itself check the ordered goods for suitability for its purposes. Recommendations for use as well as suggestions of Propulsion’s personnel are, unless expressly agreed otherwise, non-binding and do not constitute guarantees for the usability of the goods for the Customer’s purposes. They do not release the customer from his own checks on the suitability of the goods for his purposes.

12. Retention of title
12.1 Propulsion shall retain title to the goods until receipt of all payments arising from the business relationship with the Customer. In case of breach of contract by the Customer, in particular in case of default of payment, Propulsion shall be entitled to take back the goods. Taking back the goods by Propulsion shall constitute a withdrawal from the contract. After taking back the goods, Propulsion shall be entitled to realize them; the proceeds of such realization shall be credited against the Customer’s liabilities – less reasonable costs of realization.

12.2 The customer is obliged to treat the goods with care; in particular, he is obliged to sufficiently insure them at his own expense against fire, water and theft damage at replacement value.

12.3 In the event of seizure or other interventions by third parties, the Customer shall immediately notify Propulsion in writing so that Propulsion can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). To the extent that the third party is not in a position to reimburse Propulsion for the judicial and extrajudicial costs of an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the Customer shall be liable for the loss incurred by Propulsion.

12.4 The Customer shall be entitled to resell the goods in the ordinary course of business; however, the Customer shall already assign to Propulsion upon conclusion of the respective contract all claims in the amount of the final invoice amount (including VAT) of Propulsion’s claim accruing to it against its customers or third parties from the resale, irrespective of whether the goods have been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. This shall not affect Propulsion’s right to collect the claim itself. However, Propulsion undertakes not to collect the claim as long as the Customer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, as long as no petition for the institution of composition or insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, Propulsion may demand that the Customer informs Propulsion of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. 12.5 The processing or transformation of the goods by the Customer shall always be carried out for Propulsion. If the goods are processed with other items not belonging to Propulsion, Propulsion shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered under reservation of title. 12.6 If the goods are inseparably mixed with other items not belonging to Propulsion, Propulsion shall acquire co-ownership of the new item in the ratio of the value of the goods (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed to have been agreed that the Customer shall transfer co-ownership to Propulsion on a pro rata basis. The Customer shall keep the sole ownership or co-ownership thus created for Propulsion. 12.7 Propulsion undertakes to release the securities to which Propulsion is entitled at the Customer’s request to the extent that the realizable value of the securities exceeds the claims to be secured by more than 10%; Propulsion shall be responsible for selecting the securities to be released.

13. Liability
13.1 Propulsion shall be liable without limitation for damage caused intentionally or by gross negligence by Propulsion, its employees and vicarious agents, in the event of fraudulent concealment of defects, in the event of acceptance of a guarantee of quality, and for damage resulting from injury to life, limb or health.

13.2 Propulsion shall only be liable for other damages if an obligation is breached, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the Contracting Party may regularly rely (cardinal obligation) and if the damages are typical and foreseeable due to the contractual use of the Services. Any liability under the Product Liability Act shall remain unaffected. Any liability of Propulsion beyond the foregoing is excluded.

14. Force majeure
Neither of the parties is obliged to fulfill the contractual obligations in case of and for the duration of force majeure. In particular, the following circumstances shall be considered force majeure in this sense:

fire/explosion/flood for which the contracting party is not responsible,
War, mutiny, blockade, embargo,
labor dispute lasting more than 6 weeks and not culpably caused by the party, technical problems of the Internet which cannot be influenced by a party; this shall not apply if and to the extent that the provider also offers the telecommunication service.
Each contracting party shall immediately notify the other in writing of the occurrence of a case of force majeure and the end thereof.

15. Property rights of third parties
The customer guarantees that documents, samples, models, templates (hereinafter collectively referred to as “templates”) supplied by him do not infringe any rights of third parties, in particular no industrial property rights, copyrights, trademark rights, utility models, patents, etc. (hereinafter collectively referred to as “industrial property rights”). The Customer shall indemnify Propulsion against all claims asserted by third parties against Propulsion in connection with the use of templates supplied by the Customer due to the infringement of industrial property rights. This includes in particular defense and legal costs as well as other damages. Propulsion shall inform the Customer without delay if third parties assert such claims. The aforementioned indemnification agreement shall not apply if the customer is not at fault.

16. Confidentiality
Insofar as information (in particular documents, samples, models and data) is transferred within the scope of the business relationship, the contracting parties shall keep such information secret and use it exclusively for the purpose of fulfilling the purpose of the contract. This confidentiality agreement shall not apply to information which is already public knowledge at the time of transfer or which was already known to the contracting party at the time of receipt or which the contracting party had already lawfully received from a third party in a legal manner at the time of transfer.

17. Termination of long-term / call-off contracts / price adjustment
17.1 If long-term or call-off contracts are concluded with the Customer, they may be terminated with 4 weeks’ notice to the end of the month. Notice of termination must be given in writing.

17.2 Propulsion reserves the right to change the agreed prices and/or their structure at any time in the event of rising costs (production costs, personnel costs, material costs) by giving eight weeks’ written notice to the end of the month (change notice period). Should the resulting increase in the price amount to more than 5 percent of the previous price within a contractual year, the customer shall be entitled to terminate the contractual relationship with a notice period of one calendar month to the end of the change notice period.

18. Final provisions
18.1 Propulsion shall not recognize any general terms and conditions of business or contract of the Customer that conflict with or deviate from these General Terms and Conditions of Sale and Delivery unless Propulsion expressly agrees to their application in writing. These General Terms and Conditions of Sale and Delivery shall also apply if Propulsion carries out the delivery to the Customer without reservation in the knowledge that the Customer’s terms and conditions conflict with or deviate from these Terms and Conditions of Sale.

18.2 In commercial transactions, the parties agree that the exclusive place of jurisdiction for all disputes arising in connection with the performance of this Agreement shall be the registered office of Propulsion.

18.3 The business relationship and all legal issues arising therefrom shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.

Propulsion Engineering GmbH
Gerlingweg 101a, 25335 Elmshorn