General terms of contract

(valid as of 12 November 2004)

§1 General

Contracts regarding deliveries and services between Makopak and its clients are, unless complementary terms of contract by Makopak exist, exclusively concluded based on the terms and conditions listed below. These terms of contract apply to all future businesses even if they are not expressly agreed upon again. The terms shall be considered as accepted on receipt of the goods or services at the latest. Deviating terms and conditions by the client which are not expressly accepted by Makopak are non-binding. All oral agreements or such made by telegram or by phone require a confirmation in writing from by Makopak to become binding.

§2 Orders and placing of orders

Makopak accepts orders in oral and written form. A contract, however, will not be concluded until confirmation of order in written form, or at the latest on completion or offer of completion by Makopak. All offers created by Makopak are subject to confirmation and non-binding. Services and goods presented together in an offer shall only be considered as being related if expressly agreed upon.

§3 Risk and delivery

  1. Makopak delivers - even if absorption of transportation costs is expressly acknowledged - exclusively at the customer's risk; the risk of paying the complete purchase price is transferred to the customer on delivery of the goods to the customer or to a person carrying out the transport, even in case of accidental loss or damage of the goods. Place of performance is the registered office of Makopak.
  2. The choice of concluding transport insurance is left to the customer. The risk of transport for goods returned to Makopak is also borne by the customer. Makopak is entitled to make partial deliveries which may be invoiced separately after execution.

§4 Delivery period

Makopak always endeavors to comply with stated or agreed delivery periods. In case a binding delivery period is exceeded by more than 3 weeks, the customer shall set a grace period of 4 weeks which begins upon notice to Makopak. If no agreement on a new date of delivery is achieved then, the customer is entitled to withdraw from the contract by registered letter after expiration of the grace period. In this case, claims for damages on the part of the customer shall only persist if Makopak has caused damage to the customer's property intentionally or recklessly; further claims for compensation on the part of the customer are - to the extent permitted by law - excluded. If the customer does not immediately exercise his previously mentioned rights, he is not entitled to any claims resulting from the non-compliance of delivery promises.

§5 Prices and payment

  1. All prices quoted by Makopak are net prices in Euro, VAT exluced and being added at the particular statutory rate unless the prices are explicitly designated as gross prices including VAT at the particular statutory rate. Charges for special packacking and transportation shall be borne by the customer unless otherwise agreed.
  2. Unless otherwise agreed, all invoices by Makopak have to be settled in advance or immediately on delivery (cash on delivery) without any deduction; cash discount deductions are already included in the invoice amount unless otherwise agreed. Checks are only accepted on account of payment under deduction of potential collection fees.
  3. The customer is only entitled to set-off if his counterclaims are undisputable or legally ascertained.
  4. Makopak is entitled to set off all receivables it is entitled to from the customer and all receivables the customer is entitled to from Makopak. If the client is in default of payment, Makopak is entitled to charge interest at the rate usually charged for outstanding overdrafts by commercial banks, at least, however, 4% above the bank rate of the German Central Bank (Bundesbank), at immediate interest due related to the total invoice amount. If checks or drafts of the client are not honored, Makopak is entitled to render the complete residual debt immediately due even if further checks or drafts have been taken in. In this case, Makopak is also entitled to require payment in advance or securities for all performances contractually owed to the customer as well as to withdraw from these contracts after expiration of a reasonable period of grace and/or - to the extent permitted by law - to claim damages for non-performance.

§6 Title retention

  1. All goods delivered to the customer by Makopak remain property of Makopak until full payment of all receivables resulting from the entire business relationship.
  2. The customer may neither pledge the goods subject to the reservation of proprietary rights by Makopak nor otherwise transfer them as security. The purchaser is obligated to communicate immediately in writing to Makopak any potential distraints or other access by third parties to the goods delivered subject to the reservation of proprietary rights. He is furthermore obligated to immediately make aware the property of Makopak to third parties accessing the goods delivered subject to the reservation of proprietary rights.
  3. The customer is obligated to hold the goods delivered subject to the reservation of proprietary rights in safe custody and to insure the goods at his own expense against the risks of robbery, thievery, fire damages, water damages and vandalism. The customer hereby abandons his possible future claims resulting from insurance contracts with regard to the goods supplied subject to the reservation of property rights to Makopak.
  4. The customer shall bear all costs for measures serving the maintenance or safekeeping of the property of Makopak. This applies also if such measures fail but seem necessary from an objective point of view.
  5. In the event of behavior contrary to the contract on the part of the customer, in particular in the event of default in payment, Makopak is entitled to reclaim the goods supplied subject to the reservation of property rights without setting a grace period or cancellation of the contract. The customer then has to surrender the goods immediately. A cancellation of the contract by Makopak is subject to Makropak's express declaration in writing.

§7 Warranty

  1. For new goods sold to the customer, Makopak guarantees an accuracy corresponding to the particular state of the art of a type of goods; since 01 January 2002, the warranty period is twenty-four months from delivery of the goods to the customer, or, in case of forwarding, from handing over the goods to the forwarding company. For goods purchased until 31 December 2001 , or, in case of forwarding, for goods handed over to the forwarding company until 31 December 2001, the warranty period is six months.
  2. The warranty is carried out, at Makopak's option, by rework or replacement delivery. The attempt of rework or replacement delivery failing two times, the purchaser is entitled to an appropriate purchase price reduction or, optionally, a cancellation of the purchase agreement. A condition for this is that the customer has set a grace period of at least 4 weeks by registered letter.
  3. Further claims resulting from defective delivery or a breach of contractual secondary obligations by Makopak are - to the extent permitted by law - excluded; this applies to both damages and damages consequential to defects. Damages based on intention or gross negligence by Makopak or damages which occurred due to a lack of a characteristic explicitly warranted by Makopak are excepted from this disclaimer.
  4. The assertion of a warranty claim is excluded if: operating and maintenance instructions are not observed, supplied goods are modified, parts are replaced or consumables are employed which do not correspond to the original specifications.
  5. The warranty claim also expires if the purchaser does not notify Makopak in writing of the defect within 8 days from delivery or occurrence of the defect. On request of Makopak, the customer shall ship rejected goods to the registered office of Makopak at his own expense with detailed indication of the complaint and the invoice number. Expenses and handling charges arising in connection with unjustified notices of defect shall be borne by the customer. A lump sum of EUR 75 is charged, even during guarantee period, for verification of goods rejected which do not exhibit any detectable or traceable defects.

§9 Patent rights and copyrights

Makopak reserves the patent rights and copyrights for all devices, spare parts, software, schematic diagrams, drawings, blueprints, descriptions, plans, and similar documents created by Makopak. These may not be made available to third parties without written consent by Makopak. Copying without express consent by Makopak is prohibited. By request, any copies have to be returned to Makopak immediately unless provided otherwise in usage agreements. In case of violation, Makopak is entitled to claim damages. Makopak may not be held liable for the violation of possible patent rights or other trademark rights by the customer.

§10 Return of goods/replacement

Return of goods is only valid after the express prior consent of Makopak. In the event of an agreed return of goods, a lump sum is generally charged. Returned goods arriving freight forward at Makopak will not be accepted. Misdeliveries by Makopak have to be reclaimed in writing within 8 days from invoice date/date of delivery by the customer. The incorrectly delivered goods are collected at the customer's premises free of cost by Makopak or by a forwarding company commissioned by Makopak. In the event of an erroneous order by the client, the goods have to be returned to Makopak free of all charges, the risk of transport being borne by the customer. Makopak generally charges a handling fee of 6% of the invoiced value of goods, at least however EUR 75, for the repurchase of goods delivered due to erroneous orders. Repurchase or replacement of sealed software, hardware, and consumables whose packaging or license packaging has been opened is generally excluded.

§11 Place of jurisdiction, place of performance and applicable law

As far as it is permitted by law, the following shall apply for the place of jurisdiction:
  1. For all potential conflicts resulting from a business relationship or an initiation thereof with Makopak, the competent court for the place of the registered office of Makopak shall be agreed to be the place of jurisdiction.
  2. Place of performance is the place of the registered office of Makopak. It is agreed that the law of the Federal Republic of Germany applies exclusively; international sales law being expressly excluded.

§12 Severability

The invalidity of any provision of these terms and conditions shall not affect the effectiveness of the other terms and conditions. Ineffective provisions are replaced by valid provisions which come closest to the economic impact of the ineffective provision.


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