General Terms and Conditions of SMETS Technology GmbH

For the cleaning of roadways, removal of roadway markings and checking of friction values on roads, carriageways and runways.

§ 1 Scope and Validity

1.1 These General Terms and Conditions (GTC) apply, exclusively, to all offers and services delivered or to be delivered by SMETS Technology GmbH („Company“) to companies, corporate bodies or special public funds, even if no express reference is made to them, provided they have been received by the client when an order is confirmed by the Company. Clients placing orders recognise the validity of these General Terms and Conditions.
Any terms or conditions that are inconsistent with or deviate from these General Terms and Conditions, whether specifically agreed or contained in a client’s general business terms and conditions, shall not be deemed part of the contract unless they have been expressly agreed with the client in writing.

1.2 The Company’s offers are without obligation. Only orders confirmed to the client by the Company in writing (by letter, fax or email) are contractually binding. The Company’s confirmation is decisive with regard to the content and scope of an order.

§ 2 Payment

2.1 The Company’s prices are stated in euro. Exchange rate risks in connection with payments made in other currencies shall be borne by the client.

2.2 Prices are net prices, plus VAT at the applicable rate, plus any transfer and payment charges, and bank or cheque fees, as well as any customs duties or charges applicable to deliveries abroad.

2.3 Unless otherwise expressly agreed with the client pursuant to Article 1.2 of these GTC, prices shall be in accordance with the Company’s Price List from time to time. The Company shall be entitled to adjust sales prices for orders scheduled for delivery four months or more after an order is confirmed if, in the meantime, its suppliers raise their prices or there are other increases in costs.

2.4 For contracts with a validity of more than three years, if the Company’s suppliers raise their prices, or costs otherwise increase after the contract is signed, the Company shall be entitled to adjust its prices accordingly after three years. Conversely, the client shall be entitled to demand a commensurate reduction in prices if it can show that, during the relevant period, the Company’s suppliers lowered their prices or costs otherwise decreased.

§ 3 Technical Documentation

3.1 Plans, drafts and other technical documentation, especially concerning the equipment used by the Company, as well as any samples, catalogues, brochures, diagrams and the like remain the Company‘s property, and are protected by the relevant legal provisions on copyright and copying, and competition, etc. Upon receipt of such documentation at the latest, the client shall be deemed to have acknowledged the Company’s copyrights and property rights, and his confidentiality obligation. The client undertakes not to divulge such documentation to third parties, or to use it for any purpose other than that for which it was given to him, without the Company’s express written consent.
If no order is placed, the complete documentation shall be returned to the Company; if an order is placed, the documentation must only be returned at the Company’s request. 3.2 Descriptions, specifications, measurements, plans, sketches and drawings, weights and other performance data contained in brochures or other materials only give an approximate rendering of the Company’s services. Such data does not constitute a specification warranty within the meaning of the law (§ 633(2) of the German Civil Code); moreover, technical changes in equipment or processes are reserved. The foregoing applies in all cases except where specifications or characteristics are expressly guaranteed or declared binding. Insignificant variances between described and actual specifications do not constitute a defect.

§ 4 Delivery and acceptance

4.1 The Company shall fulfill its orders in accordance with industrial practice.

4.2 If, once work has started, it becomes apparent that the services cannot be delivered as agreed and that, despite due diligence on the Company’s part, performance is not possible for factual or technical reasons beyond its control, the Company shall be entitled to recover its costs.

4.3 The client shall ensure that the work area and all necessary carriageways are secured as prescribed.

4.4 Hours will be charged from the time the contracted vehicles and equipment leave the Company’s facilities on their direct way to execute the assignment until the vehicles and equipment are back at the facilities, cleaned and ready-for-use.

4.5 Acceptance

4.5.1 The client shall confirm acceptance of the delivered services within 24 hours of the Company’s request for such acceptance even if performance is completed before the scheduled date; the parties may agree to another time limit. If the client fails to confirm acceptance within the aforesaid time limit, or if the serviced areas are put back into operation, the services will be deemed accepted. If the Company does not request acceptance, the services shall be deemed accepted 24 hours after they are delivered.

4.5.2 Acceptance can only be refused on ground of significant defects and until such time as those defects are remedied.

4.5.3 In the case of recurrent services, delivered services shall be deemed accepted unless the client promptly – i.e. at the latest when the serviced areas are placed in operation – objects in writing (by letter or fax) indicating the time, place, nature and scope of the defects.

§ 5 Delivery, Delays and Passing of the Risk

5.1 The Company uses its best efforts to fulfil assignments as quickly as possible; the client will be promptly informed about any delays or hindrances. In case of doubt, service dates and durations are indicated without obligation unless a specific service schedule has been confirmed to the client in writing.

5.2 Unless it is unreasonable for the client,partial deliveries and partial invoices shall be permitted.

5.3 If delays are caused by circumstances beyond the Company’s control, the Company shall be entitled to defer its services for the duration of the hindrance or for a reasonable period of time, or it may withdraw fully or partially from the contract in respect of the outstanding part of the assignment. On no account shall the Company be liable for delays caused by events of force majeure including strikes, lock-outs, public ordinances, extreme weather conditions, traffic disruptions or similar events. If the delay or hindrance lasts longer than seven (7) calendar days, the client shall be entitled to withdraw from the contract after giving the Company a reasonable additional time limit for the outstanding part of the assignment. If, as a result, the performance period is extended or the Company is released from its obligations, the client shall not be entitled to rely on such grounds to claim damages.

5.4 For services abroad, the client alone is responsible for ensuring compliance with the import rules of the country of destination. It is for the client to obtain all requisite licences and authorisations.

 

§ 6 Payment terms, assignment of receivables

6.1 Payment is due upon completion of the assignment and presentation of the invoice. The invoice shall indicate the services delivered. The invoice amount is due and payable within two weeks of the invoice date. Money orders, cheques and drafts will only be accepted by special agreement on a case-by-case basis, and then only in satisfaction of a debt. Recurrent services shall be invoiced at the end of each phase or part of the assignment.

6.2 The client shall be in default upon receipt of a reminder sent after the due date. The sum in arrears shall bear interest at usual bank rates; such interest shall not be less than eight (8) percentage points over the base interest rate. The client shall pay Euro 15 for the second and each additional reminder after the start of default, without prejudice to the legal provisions on commencement of default and payment of default interest.

6.3 If the client is in default of more than onepayment obligation, all receivables shall become immediately due and payable.

6.4 A client may only offset against the Company’s claims counterclaims which the Company has recognised or which have been declared legally enforceable. Clients may only claim a right of retention or the right to refuse performance under §§ 273 and 320 of the German Civil Code with respect to claims which have been recognised, are ready for a decision or have been declared legally enforceable.

6.5 If the client’s financial situation deteriorates significantly after the contract is signed, for example as a result of bill protests or debt enforcement proceedings, the Company shall be entitled, insofar as the services have not yet been delivered and without prejudice to any other rights, to set a reasonable time limit for the client to pay the consideration and, if he fails to do so and does not provide adequate security within that time limit, to withdraw from the relevant contracts. If, however, the services have already been delivered, all claims which are not yet due, including any claims backed by drafts and checks, shall become immediately due and payable as a result of the default.

6.6 The Company may assign its claims.

6.7 The client may not assign claims against the Company without the Company’s written consent. Such consent may only be withheld for just cause.

§ 7 Warranties

7.1 The warranty period for the Company’s services is 48 hours.

7.2 The Company’s warranties are excluded in case of defective performance due to the condition of the areas commissioned for treatment, provided such condition could not have been recognised by the Company using the normal degree of diligence and the Company was not responsible for it.

§ 8 Liability

8.1 Unless otherwise expressly provided in these GTC, the Company’s liability for damages and expenses, on whatever grounds, is excluded in case of slight negligence.8.2 The limitation and restriction of liability under paragraph 8.1of this Article do not apply
a) if specific properties and conditions of an object were guaranteed;
b) to injuries causing death or bodily harm or affecting a person’s health;
c) to the Company’s liability under product liability laws;
d) in the event of a breach of essential contractual obligations. In this case the Company’s liability is limited to the foreseeable damages typical for the contractually agreed services. For the purpose of this Article, essential contractual obligations means the main obligations under the reciprocal contractual relationship, the performance of which the client is entitled to rely upon in terms of content, nature and objectives when it signs the contract.

8.3 The liability limits in Article 8 also apply to the Company’s consulting services. Any technical advice provided orally, in writing or by testing is based on current technological standards, the Company’s best knowledge and the indications provided by the suppliers. Notwithstanding, the client is still required to verify the proposed method of use and application. Accordingly, the application, utilisation and other uses of the products and services are exclusively within the client’s responsibility.

§ 9 Place of Performance / Jurisdiction /

Governing Law The place of performance and jurisdiction is at the Company’s registered office or, at the company’s option in the case of proceedings against the client, at the client’s registered office. The legal relationship between the Company and the client is exclusively governed by the laws of the Federal Republic of Germany unless the mandatory provisions of another legal system take precedence; the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is precluded from application.

§ 10 Disclaimer

These General Terms and Conditions have been translated into English from the German-language original for the convenience of English speakers. In case of a discrepancy between the two versions, the original German-language version shall prevail.

for the Sale, Delivery and Payment of Special Vehicles

 § 1 Scope, Application and Assignment

1.1 These General Terms and Conditions of Sale, Delivery and Payment apply, exclusively, to all present and future sales and deliveries made by SMETS Technology GmbH (the „Company“) to companies, corporate bodies or special public funds, even if no express reference is made to them, provided they have been received by the client when an order is confirmed by the Company. Clients placing orders recognise the validity of these General Terms and Conditions. Any terms or conditions that are inconsistent with or deviate from these General Terms and Conditions, whether specifically agreed or contained in a client’s general business terms and conditions, shall not be deemed part of the contract unless they have been expressly agreed with the client in writing.

1.2 The Company’s commercial agents, representatives and field staff are not authorised to enter into any agreements, give any consents or make any other legally binding statements which deviate from these General Terms and Conditions.

1.3 The Company’s offers are without obligation. Clients are bound by their orders for no more than three months. Only orders confirmed to the client by the Company in writing (by letter, fax or email) are contractually binding. The Company’s confirmation is decisive with regard to the content and scope of the order.

1.4 Clients may not assign or transfer their rights and obligations under contracts concluded with the Company to third parties without the Company’s written consent.

§ 2 Prices

2.1 The Company’s prices are stated in euro. Exchange rate risks in connection with payments made in other currencies shall be borne by the client.

2.2 Prices are net prices, plus VAT at the applicable rate, plus any transfer and payment charges, and bank or cheque fees, as well as any customs duties or charges applicable to deliveries abroad.

2.3 Unless otherwise agreed in writing, prices are stated net ex-works, i.e. without packaging, loading, transport and insurance.

2.4 For deliveries within eight months, the applicable price is that indicated in the order confirmation. Prices may be adjusted if the scheduled delivery date is more than eight months after the date the contract was signed. In that case, the price list on the delivery date shall apply. If that price is over 10% more than the agreed price, the Company shall promptly notify the client. The latter shall then be entitled to demand the cancellation of the contract by written notice to the Company within one week of receiving the aforesaid notification. Notwithstanding, the contract may be maintained at the original price if, within one week of receiving the notice of cancellation, the Company sends the client a written confirmation that delivery will be made at the original price.

§ 3 Technical Data, Registration

3.1 Plans, drafts and other technical documentation as well as any samples, catalogues, brochures, diagrams and the like remain the Company‘s property, and are protected by the relevant legal provisions on copyright and copying, and competition, etc. Upon receipt of such documentation at the latest, the client shall be deemed to have acknowledged the Company’s copyrights and property rights, and his confidentiality obligation. The client undertakes not to divulge such documentation to third parties or to use it for any purpose other than that for which it was given to him without the Company’s express written consent. If no order is placed, the complete documentation shall be returned to the Company; if an order is placed, the documentation must only be returned at the Company’s request.

3.2 Descriptions, specifications, measurements, pictures, colour indications, sketches and drawings, weights and other performance data contained in brochures or other materials only give an approximate rendering of the Company’s products. Such data does not constitute a specification warranty within the meaning of the law (§ 434 of the German Civil Code); moreover, technical or other changes which do not affect the functioning of the product are reserved. The foregoing applies in all cases except where specifications or characteristics are expressly guaranteed or declared binding. Insignificant variances between the described and actual specifications do not constitute a defect.

3.3 The client is responsible for registering the vehicles with the road traffic authorities if such registration is required. The Company does not guarantee registrability. Nor is the client entitled to demand that the Company apply for any waivers or exceptions, for example under German Road Traffic Regulations (StVZO), or the industrial safety and construction guidelines of the relevant motor vehicle manufacturer. Nevertheless, the Company shall assist the client as best as it can in this regard.

§ 4 Delivery, Delays and Passing of the Risk

4.1 The Company shall do its utmost to satisfy orders as quickly as possible; clients will be promptly informed about any delivery delays or hindrances. Delivery dates and delivery periods are without obligation unless a specific delivery date or delivery period is confirmed individually to the client in writing. Delivery periods start running when the client receives the order confirmation.

4.2 Unless it is unreasonable for the client, partial deliveries and partial invoices shall be permitted.

4.3 If delivery delays on the part of the Company are caused by delivery delays on the part of its suppliers or by any other circumstances beyond its control, the Company shall be entitled to defer its services for the duration of the hindrance or for a reasonable period of time, or it may withdraw fully or partially from the contract in respect of the outstanding part of the assignment. On no account shall the Company be liable for delays caused by events of force majeure including strikes, lock-outs, public ordinances, extreme weather conditions, traffic disruptions or similar events. § 323 of the German Civil Code applies, with the proviso that the time limit shall be of at least thirty (30) days. The client is only entitled to withdraw from the contract or to claim compensation in lieu of performance if he threatened to do so when the time limit was extended. The client’s right of withdrawal or entitlement to compensation in lieu of performance shall expire if he does not assert such rights ten days after the final deadline has elapsed. Article 8.1 of these General Terms and Conditions remains reserved. If the delay or hindrance lasts longer than thirty (30) calendar days, the client shall be entitled to withdraw from the contract after giving the Company a reasonable additional time limit for the outstanding part of the assignment. If, as a result, the performance period is extended or the Company is released from its obligations, the client shall not be entitled to rely on such grounds to claim damages.

4.4 Vehicles shipped to the client are shipped at the client’s cost and risk. The risk passes to the client when the vehicle is delivered to the forwarding agent, carrier or other shipper. Transport insurance will only be contracted at the client’s express demand and at his expense.

4.5 For deliveries abroad, the client alone is responsible for ensuring compliance with the import rules of the country of destination. It is for the client to obtain all requisite licences and authorisations.

4.6 If a vehicle which is ready for delivery cannot be shipped through no fault of the Company, or for reasons attributable to the client, or if the client does not take delivery of the purchased vehicle within eight days of receiving the Company’s notice that the vehicle is ready for delivery at the agreed place, the Company shall charge the client demurrage from the 10th day, at the rate of euro 100 per day plus VAT at the applicable rate. All further rights are reserved.

4.7 Article 8 also applies in case of delivery delays and non-delivery.

§ 5 Payment terms, Delayed Pick-up, Delayed Payment, assignment of receivables

5.1 For deliveries in Germany, the purchase price is due and payable without any deductions immediately upon delivery. First deliveries to new clients and deliveries abroad are payable in advance.
Money orders, cheques and drafts will only be accepted on a case-by-case basis by special agreement and then only in satisfaction of a debt.

5.2 The client shall be in default upon receipt of a reminder sent after the due date. The sum in arrears shall bear interest at usual bank rates; such interest shall not be less than eight (8) percentage points over the base interest rate. The client shall pay Euro 15 for the second and each additional reminder after the start of default, without prejudice to the legal provisions on commencement of default and payment of default interest.

5.3 If the client is in default of more than one payment obligation, all receivables shall become immediately due and payable.

5.4 A client may only offset against the Company’s claims counterclaims which the Company has recognised or which have been declared legally enforceable. Clients may not claim a right of retention or the right to refuse performance under §§ 273 and 320 of the German Civil Code unless the Company is responsible for gross contractual infringement.

5.5 If the client’s financial situation deteriorates significantly after the contract is signed, for example as a result of bill protests or debt enforcement, the Company shall be entitled, insofar as the goods have not yet been delivered and without prejudice to any other rights, to set a reasonable time limit for the client to pay the consideration and, if he fails to do so and does not provide adequate security within that time limit, to withdraw from the relevant contracts. If, however, the goods have already been delivered, all claims which are not yet due, including any claims backed by drafts and cheques shall become immediately due and payable as a result of the intervening default. Moreover, by virtue of the Company’s retention of title, the vehicle may be repossessed at the client’s expense and without notice at any time, even before the purchase price falls due; such repossession shall not qualify as a withdrawal from the contract.

5.6 If the client delays in picking up the vehicle or in making payment, the Company has all the rights conferred by law. If the Company elects to withdraw from the contract and claim damages instead of performance, the damages for loss of profit shall be 15% of the purchase price plus VAT at the applicable rate, unless the Company or the client can demonstrate that the profit lost was higher or lower respectively in any given case. Any further rights to damages and the Company’s rights under Article 6 of these General Terms and Conditions remain reserved.

5.7 The Company may assign its claims.

5.8 The client may not assign claims against the Company without the Company’s written consent. Such consent may only be withheld for just cause.

§ 6 Retention of Title, Insurance

6.1 Delivered vehicles remain the Company’s property until the full and final settlement of all existing and future claims against the client deriving from the overall business relationship, including the balance of any current account claims, irrespective of the legal basis for such claims.

6.2 The registration documents of vehicles delivered under reserved title shall remain in the Company’s possession. The client shall look after the vehicle with all due care and have the necessary repairs carried out by the Company or a garage recommended by the Company.

6.3 The client may not sell or pledge the delivered vehicles before he has acquired ownership and the use of the vehicles may not be surrendered to third parties without the Company’s express written consent. In any event, any claims of the client against third parties in connection with the surrender of use or pursuant to official orders are deemed to be assigned to the Company.

6.4 As long as the Company retains ownership of the vehicle, the client shall maintain full Casco insurance coverage and assign all rights under the insurance policy to the Company. If the client fails to do so, the Company may contract full Casco insurance at his expense and charge the premiums disbursed to his account. Insurance proceeds shall be fully applied to the cost of repairing the vehicle still under retention of title. If the vehicle is a total loss, the insurance benefits shall be used to repay the Company’s claims. The client shall be entitled to any surplus amounts.

6.5 The client shall immediately object to any third-party actions (e.g. seizure or attachment) affecting the vehicles delivered under retained title or the claims assigned to the Company, referring to the Company’s rights. He shall promptly notify the Company in writing of any such action, remitting to the Company the necessary documents (e.g. the record of attachment) enabling it to take action.

6.6 If the client fails to pay any amount when due or otherwise infringes his contractual obligations, the Company shall be entitled to repossess the vehicle at the client’s expense or to demand the assignment of the client’s claims for return against third parties. The assertion of the Company’s rights of retention and its repossession or seizure of the vehicle do not qualify as a withdrawal from the contract.

6.7 The retention of title also secures any liabilities which may arise from an official receiver’s unilateral choice of performance.

6.8 The Company shall release the securities held pursuant to the above if and insofar as they exceed the value of the claims to be secured by 20% or more, under the proviso that only deliveries which have been fully paid will be released; current account deliveries are excepted.

6.9 If, in the country of destination, effective title cannot be retained or cannot be retained to the required extent, the client shall automatically put up securities offering the closest possible replacement value to the retention of title.

§ 7 Warranties

7.1 The Company’s warranties presuppose that the client promptly notifies it of any defects in the vehicle or any wrong or incorrect deliveries. § 377 of the German Commercial Code is applicable, with the proviso that defects must be notified and accurately described to the Company in writing. Apparent defects must be notified within eight (8) days of delivery. Hidden defects must be notified within eight (8) days of discovery but no later than three (3) months after delivery. The client shall, at the Company’s option, return the faulty vehicle or allow the Company to check the vehicle and remedy the defect on site.

7.2 The Company’s warranties do not cover normal wear and tear of the vehicle or of any replacement or expendable parts such as nozzles, for example; nor do the warranties extend to defects caused by the client or by third parties, for example through improper alteration, use or handling of the vehicle or through lack of repair and maintenance. Moreover, the warranties presuppose that the manufacturer’s specific instructions for the use and maintenance of the vehicles are duly observed in accordance with the service book and that maintenance is carried out and documented by the Company or by work shops approved by the Company. The client is expressly made aware of the fact that the nozzles delivered by the Company have a limited life span which largely depends on operating pressure and environmental conditions, such as water quality in particular.

7.3 The Company’s warranties are first limited to the right to remedy or replace the defective parts at its option. If this is not effective or if the client can show that such a solution is unreasonable for him on other grounds, the client may, at his choice, ask for a decrease in price (reduction) or withdraw from the contract. The client is only entitled to demand the full replacement of the vehicle if the defects can be shown to be due to a construction error or faulty materials which render the whole vehicle unfit for use.

7.4 Claims based on defects become time-barred two (2) years after delivery. For spare parts and expendable parts, however, claims are time-barred after one (1) year.

7.5 If a vehicle delivered by the Company reaches a private consumer who files a justified warranty claim, the client may avail himself of his legal rights of recourse (§§ 478 and 479 BGB) subject to Article 7.1 and Article 8 of these General Terms and Conditions.

7.6 Notwithstanding the present Article, all warranties are excluded for the purchase of used vehicles.

§ 8 Liability

8.1 Unless otherwise expressly provided in these GTC, the Company’s liability for damages and expenses, on whatever grounds,
a) is excluded in case of slight negligence, and
b) is restricted, in case of gross negligence, to the foreseeable damages typical for the contractual services.

8.2 The limitation and restriction of liability under paragraph 1(a) and (b) of this Article do not apply
a) if the damages were caused deliberately;
b) if specific properties and conditions of an object were guaranteed;
c) to injuries causing death or bodily harm or affecting a person’s health;
d) to the Company’s liability under product liability laws.

8.3 In case of breaches of essential contractual obligations, the Company’s liability is limited to the foreseeable damages typical for the contractually agreed services. For the purpose of this Article, essential contractual obligations means the main obligations under the reciprocal contractual relationship, the performance of which the client is entitled to rely upon in terms of content, nature and objectives when it signs the contract.

8.4 Article 8.3 also applies in case of gross negligence.

8.5 SMETS products are typically used for highpressure cleaning and the cleaning of sewers. The liability limits in this Article 8 also apply to the Company’s consulting services. Any technical advice provided orally, in writing or by testing is based on current technological standards, the Company’s best knowledge and the indications provided by the suppliers. Notwithstanding, the client is still required to verify the proposed method of use and application. Accordingly, the application, utilisation and other uses of the vehicles are exclusively within the client’s responsibility. The client shall pass on the foregoing information and obligations to subsequent acquirers and to his own customers.

§ 9 Place of Performance / Jurisdiction / Governing Law

The place of performance and jurisdiction is at the Company’s registered office or, at the company’s option in the case of proceedings against the client, at the client’s registered office. The legal relationship between the Company and the client is exclusively governed by the laws of the Federal Republic of Germany unless the provisions of another legal system take mandatory precedence; the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is precluded from application.

§ 10 Disclaimer

These General Terms and Conditions have been translated into English from the Germanlanguage original for the convenience of English speakers. In case of a discrepancy between the two versions, the original Germanlanguage version shall prevail.

for the Sale, Delivery and Payment of Nozzles

§  1 Scope and Validity

1.1 These General Terms and Conditions of Sale, Delivery and Payment apply, exclusively, to all present and future sales and deliveries made by Smets Technology GmbH (the „Company”) to companies, corporate bodies or special public funds, even if no express reference is made to them, provided they have been received by the client when an order is confirmed by the Company. Clients placing orders thereby recognise the validity of these General Terms and Conditions. Any terms or conditions that are inconsistent with or deviate from these General Terms and Conditions, whether specifically agreed or contained in a client’s general business terms and conditions, shall not be deemed part of the contract unless they have been expressly agreed with the client in writing.

1.2 The Company’s offers are without obligation. Only orders confirmed to the client by the Company in writing (by letter, fax or email) are contractually binding. The Company’s confirmation is decisive with regard to the content and scope of the order.

§ 2 Minimum Orders, Prices

2.1 Orders shall be for a minimum net value of € 50.00. Orders below this limit will be subject to a surcharge of € 10 per delivery.

2.2 The Company’s prices are stated in euro. Exchange rate risks in connection with payments made in other currencies shall be borne by the client.

2.3 Prices are net prices, plus VAT at the applicable rate, plus any transfer and payment charges, and bank or cheque fees, as well as any customs duties or charges applicable to deliveries abroad.

2.4 Unless otherwise agreed in writing, prices are stated net ex-works, i.e. without packaging, loading, shipping and insurance.

2.5 If its suppliers increase their prices or if costs increase otherwise, the Company shall be entitled to adjust the sales prices for orders that were scheduled for delivery four months or more after the confirmation of order.

§ 3 Technical Documentation

3.1 Plans, drafts and other technical documentation as well as any samples, catalogues, brochures, diagrams and the like remain the Company‘s property, and are protected by the relevant legal provisions on copyright and copying, and competition, etc. At the latest upon receipt of such documentation, the client shall be deemed to have acknowledged the Company’s copyrights and property rights, and his confidentiality obligation. The client undertakes not to divulge such documentation to third parties or to use it for any purpose other than that for which it was given to him without the Company’s express written consent. If no order is placed, the complete documentation shall be returned to the Company; if an order is placed, the documentation must only be returned at the Company’s request.

3.2 Descriptions, specifications, measurements, plans, sketches and drawings, weights and other performance data contained in brochures or other materials only give an approximate rendering of the Company’s products. Such data does not constitute a specification warranty within the meaning of the law (§ 434 of the German Civil Code); moreover, technical changes are reserved. The foregoing applies in all cases except where specifications or characteristics are expressly guaranteed or declared binding. Insignificant variances between the described and actual specifications do not constitute a defect.

§ 4 Delivery, Delays and Passing of the Risk

4.1 The Company shall do its utmost to satisfy orders as quickly as possible; clients will be promptly informed about any delivery delays or hindrances. Delivery dates and delivery periods are without obligation unless a specific delivery date or delivery period is confirmed individually to the client in writing. Delivery periods start running when the client receives the order confirmation.

4.2 Unless it is unreasonable for the client, partial deliveries and partial invoices are permitted.

4.3 If delivery delays on the part of the Company are caused by circumstances beyond its control, the Company shall be entitled to defer its services for the duration of the hindrance or for a reasonable period of time, or it may withdraw fully or partially from the contract in respect of the outstanding part of the assignment. On no account shall the Company be liable for delays caused by events of force majeure including strikes, lock-outs, public ordinances, extreme weather conditions, traffic disruptions or similar events. If the delay or hindrance lasts longer than fourteen (14) calendar days, the client shall be entitled to withdraw from the contract after giving the Company a reasonable additional time limit for the outstanding part of the assignment. If, as a result, the performance period is extended or the Company is released from its obligations, the client shall not be entitled to rely on such grounds to claim damages.

4.4 Goods shipped to the client are shipped at the client’s own cost and risk. The risk passes to the client when the goods are delivered to the forwarding agent, carrier or other shipper. Unless the client organises the shipping, the Company shall contract marine insurance at its own cost. If the goods cannot be shipped or picked up through no fault of the Company, or for reasons attributable to the client, the Company may store the goods at the client’s risk and expense. In that case, the goods shall be deemed to have been delivered and accepted. The agreed payment terms and conditions will not be affected.

4.5 For deliveries abroad, the client alone is responsible for ensuring compliance with the import rules of the country of destination. It is for the client to obtain all requisite licences and authorisations.

4.6 Article 8 also applies in case of delivery delays and non-delivery.

§ 5 Payment Terms, assignment of receivables

5.1 Deliveries are payable exclusively in advance. Money orders, cheques and drafts will only be accepted on a case-by-case basis by special agreement and then only in satisfaction of a debt.

5.2 The client shall be in default upon receipt of a reminder sent after the due date. The sum in arrears shall bear interest at usual bank rates; such interest shall not be less than (8) percentage points over the base interest rate. The client shall pay Euro 15 for each reminder after the start of default, without prejudice to the legal provisions on commencement of default and payment of default interest.

5.3 If the client is in default of more than one payment obligation, all receivables shall become immediately due and payable.

5.4 A client may only offset against the Company’s claims counterclaims which the Company has recognised or which have been declared legally enforceable. Clients may not claim a right of retention or the right to refuse performance under §§ 273 and 320 of the German Civil Code unless the Company is responsible for gross contractual infringement.

5.5 If the client’s financial situation deteriorates significantly after the contract is signed, for example as a result of bill protests or debt enforcement, the Company shall be entitled, insofar as the goods have not yet been delivered and without prejudice to any other rights, to set a reasonable time limit for the client to pay the consideration and, if he fails to do so and does not provide adequate security within that time limit, to withdraw from the relevant contracts. If, however, the goods have already been delivered, all claims which are not yet due, including any claims backed by drafts and checks, shall become immediately due and payable as a result of the intervening default. Moreover, by virtue of the Company’s retention of title, the goods may be repossessed at the client’s expense and without notice at any time, even before the purchase price falls due; such repossession shall not qualify as a withdrawal from the contract.

5.6 The Company may assign its claims.

5.7 The client may not assign claims against the Company without the Company’s written consent. Such consent may only be withheld for just cause.

§ 6 Retention of Title

6.1 Delivered goods remain the Company’s property until the full and final settlement of all existing and future claims against the client deriving from the overall business relationship, including the balance of any current account claims, irrespective of the legal basis for such claims.

6.2 The reserved goods may only be sold and processed in the normal course of business and provided the client is not in arrears with his payment obligations towards the Company. Reserved goods may not be pledged or assigned by way of security.

6.3 The client may process and manipulate the reserved goods in the normal course of business. Processing and manipulation shall be carried out on behalf of the Company as manufacturer, within the meaning of § 950 BGB, but without obligation for the Company. The Company automatically acquires the title to the product resulting from the processing or manipulation. If the reserved goods are processed together with other goods not belonging to the Company, the Company shall acquire co-ownership of the new product proportionately to the ratio of the market value of the reserved goods to the total market value of all the goods being processed together. If, during the processing, the Company loses its title over the reserved goods to the client, it is hereby agreed that as soon as the client acquires ownership, it shall transfer the ownership to the Company. If the reserved goods are processed together with other goods not belonging to the Company, and the client becomes the owner of the new product, it is hereby agreed that the client shall transfer the co-ownership of the new product to the Company proportionately to the ratio of the market value of the processed reserved goods to the total market value of all the goods which were processed together. The client shall hold the ownership or co-ownership revocably and gratuitously in trust for the Company.

6.4 The client hereby assigns to the Company by way of security any claims against third parties arising from the onward sale of the goods (including the balance of any current account claims) and any other claims (e.g. for unauthorised processing or insurance benefits) in connection with the goods. The Company hereby accepts such assignment. The client shall remit to the Company at its request all necessary documentation and information for the assertion of the assigned claims. The Company revocably authorises the client to collect the assigned claims in its own name for the Company’s account. The Company may revoke this power if the client does not duly fulfil its payment obligations towards the Company.

6.5 The client shall, at its own expense but in the Company’s favour, contract adequate insurance covering the reserved goods against theft, burglary and fire and water damage, and it shall produce evidence of such coverage on demand. The insurance coverage shall be maintained as long as the Company still has claims against the client in the scope of their overall business relationship. The client hereby assigns all insurance claims in connection with the reserved goods to the Company. The Company hereby accepts such assignment.

6.6 The client shall immediately object to any thirdparty actions (e.g. seizure or attachment) affecting the reserved goods or the claims assigned to the Company, referring to the Company’s rights. He shall promptly notify the Company in writing of any such action, remitting to the Company the necessary documents (e.g. the record of attachment) enabling it to take action.

6.7 If the client fails to pay any amount when due or otherwise infringes his contractual obligations, the Company shall be entitled to repossess the reserved goods at the client’s expense or to demand the assignment of the client’s claims for return against third parties. The assertion of the Company’s rights of retention and its repossession or seizure of the goods do not qualify as a withdrawal from the contract.

6.8 The retention of title also secures any liabilities which may arise from an official receiver’s unilateral choice of performance.

6.9 The Company shall release the securities held pursuant to the above if and insofar as they exceed the value of the claims to be secured by 20% or more, under the proviso that only deliveries which have been fully paid will be released; current account deliveries are excepted.

§ 7 Warranties

7.1 The Company’s warranties presuppose that the client promptly notifies it of any defects in the goods or any wrong or incorrect deliveries. § 377 of the German Commercial Code is applicable, with the proviso that defects must be notified and accurately described to the Company in writing. Apparent defects must be notified within eight (8) days of delivery. Hidden defects must be notified within eight (8) days of discovery but no later than three (3) months after delivery. The client shall, at the Company’s option, return the faulty goods or allow the Company to check the goods and remedy the defect on site.

7.2 The Company’s warranties do not cover normal wear and tear of the goods, nor do the warranties extend to defects caused by the client or by third parties, for example through improper alteration, use or handling of the goods or through lack of repair and maintenance. The client is expressly made aware of the fact that the nozzles delivered by the Company have a limited life span which largely depends on operating pressure and environmental conditions, such as water quality in particular.

7.3 The Company’s warranties are first limited to the right to remedy or replace the defective goods at its option. If this is not effective or if the client can show that such a solution is unreasonable for him on other grounds, the client may, at his choice, ask for a decrease in price (reduction) or withdraw from the contract.

7.4 Claims based on defects become time-barred one (1) year after delivery.

7.5 If a product delivered by the Company reaches a private consumer who files a justified warranty claim, the client may avail himself of his legal rights of recourse (§§ 478 and 479 BGB) subject to Article 7.1 and Article 8 of these General Terms and Conditions.

§ 8 Liability

8.1 Unless otherwise expressly provided in these GTC, the Company’s liability for damages and expenses, on whatever grounds,
a) is excluded in case of slight negligence, and
b) is restricted, in case of gross negligence, to
the foreseeable damages typical for the contractual services.

8.2 The limitation and restriction of liability under paragraph 1(a) and (b) of this Article do not apply
a) if the damages were caused deliberately;
b) if specific properties and conditions of an object were guaranteed;
c) to injuries causing death or bodily harm or affecting a person’s health;
d) to the Company’s liability under product liability laws.

8.3 In case of breaches of essential contractual obligations, the Company’s liability is limited to the foreseeable damages typical for the contractually agreed services. For the purpose of this Article, essential contractual obligations means the main obligations under the reciprocal contractual relationship, the performance of which the client is entitled to rely upon in terms of content, nature and objectives when it signs the contract.

8.4 Article 8.3 also applies in case of gross negligence.

8.5 SMETS products are typically used for highpressure cleaning and the cleaning of sewers. The liability limits in this Article 8 also apply to the Company’s consulting services. Any technical advice provided orally, in writing or by testing is based on current technological standards, the Company’s best knowledge and the indications provided by the suppliers. Notwithstanding, the client is still required to verify the proposed method of use and application. Accordingly, the application, utilisation and other uses of the products are exclusively within the client’s responsibility. The client shall pass on the foregoing information and obligations to subsequent acquirers and to his own customers.

§ 9 Place of Performance / Jurisdiction / Governing Law

The place of performance and jurisdiction is at the Company’s registered office or, at the company’s option in the case of proceedings against the client, at the client’s registered office. The legal relationship between the Company and the client is exclusively governed by the laws of the Federal Republic of Germany unless the provisions of another legal system take mandatory precedence; the Vienna Sales Convention (United Nations Convention on Contracts for the International Sale of Goods) is precluded from application.

§ 10 Disclaimer

These General Terms and Conditions have been translated into English from the Germanlanguage original for the convenience of English speakers. In case of a discrepancy between the two versions, the original German-language version shall prevail.