General Terms and Conditions for Deliveries and Goods of CLAAS Industrietechnik GmbH (Rev. 10/2012)

1. Quotations and Conclusion of Contract

1.1 The terms and conditions outlined hereinafter shall be applicable to all quotations and sales especially of gears, hydraulic and electronic components, cabins, axes, accessories and spare parts as well as other deliveries of goods and services made by CLAAS Industrietechnik GmbH (hereinafter  referred to as the „Supplier“). The current version of these terms and conditions shall be applicable. Any deviating terms and conditions of the Supplier shall not become part of the contract even if the Supplier fails to reiterate his objection to them explicitly. 

1.2 The contract shall become effective only by the Supplier ´s Order Acknowledgement issued in writing. 

1.3 Ancillary agreements or amendments to the contract shall become effective only if they have been confirmed by the Supplier in writing. Information about measures, weights and other technical data as well as illustrations, descriptions and drawings on the item of delivery, which are included in brochures, leaflets, product descriptions and other papers and documents provided by the Supplier, shall be deemed as being approximately authoritative only, unless they have been explicitly qualified as binding by the Supplier in his order acknowledgement. All quotation documents, drawings, samples and patterns and similar information of tangible or intangible nature shall be subject to the Supplier`s proprietary right and / or copyright and must not be made available to any third parties without the Supplier`s previous consent. 

1.4 The Supplier reserves the right to make modifications to the construction and shape even after conclusion of the contract, if the item of delivery is not substantially modified and the modification is acceptable for the Purchaser. 

1.5 The Purchaser shall be bound to his purchase order for 4 weeks. This period begins to run as of the date of receipt of the written purchase order at the Supplier`s address. 

1.6 For spare parts requirements and after-sales requirements in serial parts which are not included in the standard scope of serial parts, the Supplier reserves the right to impose a different pricing. Deliveries of spare parts may also be made through CLAAS Service and Parts GmbH.

2. Prices

2.1 Unless otherwise agreed, the prices of the items of delivery are quoted ex works / ex warehouse, loading onto the transport means included, but packaging, insurance and mounting work excluded. The value-added tax and customs duties to the legal amount and transportation costs incurred will be added to the prices / to any down payment amounts invoiced. Even if delivery is made on a carriage-free basis, shipment will be made at the Purchaser ´s risk, unless otherwise agreed explicitly. 

2.2 In the event the Purchaser should demand design changes, he shall be committed to bear the additional costs thereby incurred to the Supplier. Any such design changes have to be confirmed in writing by the Supplier.

3. Terms and Conditions of Payment

3.1 Unless otherwise agreed, payments have to be made in cash immediately upon receipt of the invoice, without any deduction, free of charge to the Supplier ´s paying agent. Representatives or other sales personnel of the Supplier shall not be authorized to accept payments. The Supplier reserves the right to supply spare parts and a ccessories on a cash-on-delivery basis.  

3.2 If a fixed payment deadline has been exceeded, the payment shall be deemed to be in arrears without any prior reminder. (§ 286 paragraph II of the German Civil Code 1). In this case, the Supplier shall be entitled to demand interest on arrears to the amount of 9 % p. a. above the base interestrate ((§§ 247, 288 II of the German Civil Code “BGB”), unless the Supplier gives evidence of a higher damage in interests on arrears. Bills of exchange and cheques will be accepted only on account of payment. If they have been issued to secondary locations, the Supplier shall not be liable  for the timely filing of protests. Any discount, bill and collection costs shall be borne by the Purchaser. Complaints shall not entitle the Purchaser to the restraint of payments due. Rights of retention and offsetting against any disputed counterclaims not enforced by virtue of law shall be excluded. 

3.3 If the Purchaser is in arrears on payment to an amount of at least 1/10 of the purchase price, the entire balance amount shall be payable without any reminder. If the Purchaser ´s customer has settled payment of the item delivered in full or in part, the Supplier ´s account receivable from the Purchaser shall be payable immediately to the same amount. This shall equally apply if the bills of exchange or cheques agreed are not negotiated or paid in time, in case of a cessation of payments, an application for opening of insolvency proceedings against the assets of the Purchaser or in case of execution. If accounts receivable are reduced to a quota in an insolvency proceeding, any claim for discounts and / or bonuses agreed shall expire. 

3.4 If the Purchaser has been in arrears on payment for more than 30 days to an amount of at least 1/10 of the purchase price, the Supplier shall be entitled to take repossession of the item of delivery, while granting an appropriate period of grace, until receipt of payment of the out standing amount in order to secure his claims, if this is acceptable for the Purchaser, for example in case of items of delivery that have not been resold yet and / or that have not been subject to a current use yet. Any such repossession must not be construed as a cancellation statement of the Supplier. In this case, any right of retention of the Purchaser shall be excluded. 

3.5 In case of reasonable doubt about the Purchaser ´s solvency or creditworthiness, which is particularly indicated by the delay in payment, the Supplier shall be entitled – without prejudice to his other rights – to demand securities or advance payments for pending goods or services, to declare all claims from the business relationship as being payable with immediate effect and to raise a plea of uncertainty within the meaning of § 321 of the German Civil Code as his right to refuse performance. Moreover, the Supplier shall have the right of cancellation according to § 321, paragraph 2 in conjunction with § 323 of the German Civil Code.

4. Time of Delivery

4.1 Delivery periods and deadlines are subject to change unless a specific delivery time has been  agreed. 

4.2 Compliance with the time of delivery agreed shall be subject to the proviso of correct and timely deliveries made to the Supplier himself. Impending delays have to be notified by the Supplier as soon as possible. The time of delivery shall be deemed as being kept if the item of delivery has left the Supplier`s factory / warehouse or the advice of dispatch has been issued on or before expiry of the time of delivery agreed. The period of execution for services to be accepted shall be deemed as being kept as of the date of notification that the Purchaser is ready to accept them. The time of delivery shall be extended accordingly in case of actions taken within the framework of labour conflicts, if unforeseen events (such as operating troubles, restrictions on the supply of goods or embargoes, lack of transport facilities, measures taken by public authorities) occur, and in cases of force majeure which are beyond the Supplier ´s control, if any such obstructions can be proven to have a substantial impact on the accomplishment of delivery of the item of delivery. The Supplier shall notify the Purchaser of the beginning and the end of any such circumstances as soon as possible. 

4.3. Compliance with the time of delivery agreed calls for the timely performance of the contract and the Purchaser ´s collaboration, e.g. with regard to the provision of papers and documents, calculations, load collectives, approvals, permits and releases as well the settlement of a down payment agreed or the provision of payment securities. Subsequent changes to the scope of the purchase order which are accepted by the Supplier shall result in an appropriate extension of the time of delivery. 

4.4 The Purchaser may cancel the contract without giving prior notice if the Supplier is definitely unable to accomplish the entire service before the transfer of risk. The Purchaser may in addition cancel the contract if upon placement of a purchase order, the execution of a part of the delivery proves to be impossible and he has a justified interest in refusing the partial delivery. Otherwise, the Purchaser shall be committed to settle the purchase price payable for that partial delivery. Incidentally, subparagraph 9 of these Terms and Conditions shall apply.  4.5 If shipment is delayed upon request of the Purchaser, he will be invoiced – starting one month after the date of advice of dispatch – the costs incurred by the storage of the goods if they are kept in the warehouse at the Supplier ´s works, but at least 0.5 % of the invoice amount for each month, unless the Purchaser proves that the costs are low. 

4.6 Nevertheless, the Supplier shall be entitled to use the item of delivery for other purposes after fruitless expiry of an appropriate further limitation period fixed and to supply the Purchaser at an appropriately extended period.

5. Transfer of Risk and Collection and Acceptance

5.1 Delivery shall be made ex works, either by collection / acceptance or by shipment. If delivery is not collected and accepted on or before the date of delivery either by the Purchaser or by an authorized representative of the Purchaser, the Supplier shall be deemed as being vested with authority to dispatch the item of delivery on the account and risk of the Purchaser. If the item of delivery is accepted by the Purchaser or by his authorized representative, the risk shall be transferred to the Purchaser as of the point in time when the item of delivery is taken over and accepted. In case of shipment, the risk shall be transferred to the forwarding agency as soon as the item of delivery has been handed over by the Supplier to a transport agency or to the forwarder, even if partial deliveries are made and the Supplier has accepted to perform some other dutie  s or services such as the payment of shipping costs or the carriage and installation. 

5.2 Upon request by the Purchaser, the consignment will be insured by the Supplier at the Purchaser ´sexpense against theft, breakage, damage in transit, fire and water damage and other insurable risks. 

5.3 If shipment or collection and acceptance of the item of delivery is delayed due to circumstances  which the Purchaser is responsible for or due to cases of force majeure, the risk shall be transferred  to the Purchaser as of the date when the consignment is ready for shipment or for collection and acceptance. 

5.4 Items of delivery that have been delivered at their place of destination have to be taken over and accepted by the Purchaser, even if they show insignificant defects or deficiencies, irrespective of his rights under paragraph 8 of these terms and conditions. 

5.5 Partial deliveries shall be allowed if bearable for the Purchaser. 

5.6 If the packing material is provided by the Purchaser, he shall be committed to make sure that the packing material is made available to the Supplier free of charge, on time, in a clean condition, without any labelling and in sufficient quantities. Otherwise, the Supplier shall reserve the right to invoice any costs incurred.

6. Supplier`s Right to Cancel the Contract

The Supplier shall be entitled to cancel the contract if, after conclusion of the contract, the circumstances essential for the conclusion of contract have evolved in a way without the Supplier ´s possibility to influence them, or in a way that it is impossible or unreasonably difficult for him to perform (e.g. as a result of a failure of delivery from sub-suppliers or of a delivery under only very difficult conditions which is beyond the Supplier ´s responsibility). The Supplier shall – without prejudice to any damage claims he may assert – also be entitled to cancel the contract if the Purchaser commits an essential violation of his contractual obligations, especially if the Purchaser is in arrears on collection and acceptance of the item of delivery by more than one month after the date of shipping advice or if he is responsible for a violation of his duty to exercise proper care and supervision regarding the treatment of the item of delivery that has been supplied under reservation of title. Incidentally, the Supplier ´s right to cancel the contract shall be subject to the legal provisions.

7. Reservation of Title

7.1 The Supplier reserves title to all items of delivery until all accounts receivable – even those of a future and conditional type – which the Supplier might have against the Purchaser from their business relationship, including interests and costs, are finally settled. This shall equally apply if individual or all of the Supplier ´s accounts receivable have been filed in one single account and the balance has been struck and acknowledged. The Supplier shall be entitled to inspect and to register the items of delivery supplied by him under reservation of title and not yet paid in full by the Purchaser during the normal opening hours at the Supplier`s plant and to mark them with identification signs again if necessary. 

7.2 In case of a culpable breach of contract by the Purchaser, especially in case of a delay in payment, the Supplier shall be entitled to cancel the contract and to take repossession of the goods supplied under reservation of title and / or to demand assignment of the claims for return of property. A levy of execution of the goods supplied under reservation of title shall not be deemed as a cancellation of the contract. The application for opening of insolvency proceedings on the assets of the Purchaser shall entitle the Supplier to cancel the contract and to demand immediate return of the item of delivery. 

7.3 The Purchaser may neither pledge the item of delivery nor assign it for security purposes. In the event of levies of execution or any other interventions by third parties, the Purchaser shall be committed to notify the Supplier immediately. The reservation of title shall not be repealed by payments from third parties, especially by payments from endorsers of bills of exchange. In this respect, the Supplier ´s rights shall be conferred upon the paying party. The Purchaser shall be committed to conclude appropriate insurance contracts against fire, burglary, theft and water damage. The insurance claims to the amount of the value of the goods shall be assigned to the Supplier here and now. The Supplier hereby accepts the assignment. 

7.4 The Supplier shall be entitled to resell the item of delivery in the ordinary course of business under terms and conditions that are in compliance with these the terms and conditions of sale outlined in this document. If, however, he is in financial difficulties or if he has failed to balance his debit account vis-à-vis the Supplier, he shall be authorized to deal with the items of delivery with the Supplier ´s prior express consent exclusively. Any use or disposition of the items of delivery without this priorconsent shall be invalid unless they have been subject to a subsequent approval. 

7.5 The Purchaser hereby assigns to the Supplier all accounts receivable and counterclaims accrued or accruing to him as a result of the sale or any other applicable legal grounds. The Purchaser shall remain authorized to collect accounts receivable even after the assignment, but the Supplier shall at his own discretion have the right to collect any such accounts receivable direct from the final customer. The Supplier shall avoid this as long as the Purchaser meets his obligations properly. The Supplier may demand from the Purchaser information on all accounts receivable assigned and the corresponding debtors as well as information on and hand-over of all documents required for the collection of the accounts receivable. Moreover, the assignment has to be notified to the third party debtors upon request (open cession). If the item of delivery is resold along with other goods not owned by the Supplier, the Purchaser ´s account receivable against the final customers shall be deemed as being assigned to the amount of the delivery price agreed between the Supplier and the Purchaser. 

7.6 The processing of items supplied under reservation of title shall be made by the Purchaser always on behalf of the Supplier. If the goods supplied under reservation of title are processed along with other items not owned by the Supplier, the Supplier shall obtain co-proprietorship in the new item according to the share of the value of the goods supplied under reservation of title in this new item. 

7.7 The Supplier undertakes to approve and release the securities he is entitled to, if their value should exceed the value of the accounts receivable to be secured by more than 20 % - if these securities have not been settled yet. 

7.8 The Purchaser shall bear the risk of loss or deterioration of the goods supplied in spite of the reservation of title.

8. Warranty

The Supplier shall grant warranty to the Purchaser for any material and legal defects on the items of delivery while excluding any further claims and subject to paragraph 9 of these Terms and Conditions, as follows: Material defects: 

8.1 If the items delivered are meant to be included in machines and devices owned by the Purchaser and have not been developed and / or designed for this purpose by the Supplier, the Supplier will refuse to give any warranty on their adequate fitness, strength or durability. Unless otherwise agreed, the examination of the suitability of the items of delivery for the Purchaser ´s intended purposes shall be at the Purchaser ´s charge and responsibility exclusively. If, however, the defect is a material defect, the following provisions shall apply. All items of delivery or parts thereof have to be repaired or improved or supplied as new items or parts free of charge at the Supplier ´s discretion, which have turned out to be deficient as a result of a circumstance that occurred before the transfer of risk. The detection of any such defects or deficiencies has to be reported to the Supplier immediately in writing. 

8.2 The Purchaser shall be committed to grant to the Supplier, upon previous consultation and agreement with the Supplier, the time and opportunity required for the execution of all repair or improvement work and replacement deliveries which the Supplier deems necessary. Otherwise, the Supplier shall be exempt from the liability for any consequences resulting thereof. If the complaint proves to be justified, the Supplier shall bear, unless otherwise agreed, among the costs incurred by the repair or improvement work or by the replacement delivery, the costs of the replacement part including shipping expenses within the Federal Republic of Germany, and the reasonable amount of costs incurred for the mounting and dismounting work and / or of the repair costs, including all reasonable transit costs within the Federal Republic of Germany, if the repair work is accomplished outside the Purchaser`s workshop. Moreover and if this may reasonably be requested, the Purchaser shall bear.