These general terms and conditions are translations of the German original version. Should there be discrepancies between the interpretation of the German and English versions, the German version shall prevail.The German version is available on our website: www.msd-ag.de

§1 Scope

(1) These General Terms and Conditions of MSD AG (business address: Stollenberg 8, 77770 Durbach) apply to all transactions of MSD AG with entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) BGB.

(2) These general terms and conditions apply exclusively. Deviating or conflicting conditions are only valid if MSD AG has expressly agreed to their validity in writing. The general terms and conditions of MSD AG also apply to all future business of MSD AG with an orderer and also if MSD AG unconditionally carries out the delivery or service in the knowledge of conflicting or differing conditions of the customer.

(3) Agreements made individually between MSD AG and the customer always have priority over the regulations in these general terms and conditions. Only the written order confirmation from MSD AG is decisive for the content of such agreements.

§2 Offer and Conclusion of Contract

(1) The offers of MSD AG are non-binding and subject to change.

(2) Orders are only accepted if they have been confirmed in writing by MSD AG. The same applies to telephone and verbal agreements and assurances. Subsidiary agreements and changes also require written confirmation from MSD AG to be effective. Assured properties are only properties that are expressly guaranteed in writing.

(3) Obvious errors, printing, arithmetic, typing and calculation errors are not binding for MSD AG and do not give any entitlement to fulfillment.

(4) The customer assumes full liability for the correctness of the documents to be delivered, such as drawings, gauges, samples or the like. Verbal information about dimensions, tolerances or the like require written confirmation by MSD AG. For prescribed dimensions, MSD AG reserves the scope offered by the manufacturing process. Special requirements, exact moderation, must be agreed in writing in each individual case.

(5) MSD AG reserves ownership and copyright to cost estimates, sketches, drawings and other documents. They may not be made available to third parties without their consent, nor may they be used for other purposes, in particular those made by the customer. If requested, they must be returned to MSD AG immediately.

(6) Samples are only delivered against calculation.

§3 Scope of Delivery

(1) The written order confirmation from MSD AG is decisive for the scope of the delivery.

(2) Protective devices are supplied insofar as this has been agreed in writing. If, based on the laws and regulations applicable at the place of operation of the delivered goods, protective devices are recommended or mandatory for their operation, the purchaser is responsible for their purchase, professional installation and perfect functioning.

(3) Minor deviations from the performance specifications are to be accepted as in accordance with the contract, provided that they do not impair the contractual use of the item. These deviations do not require notification from MSD AG.

(4) Changes in construction or shape, which can be attributed to the improvement of the technology or to demands of the legislature, remain reserved during the delivery period, provided that the delivery item is not changed significantly and the change is reasonable for the customer.

(5) MSD AG is entitled to make partial deliveries to a reasonable extent for the customer.

§4 Prices

(1) The prices of MSD AG apply in Euros ex works excluding packaging, freight, postage and insurance as well as plus the statutory value added tax applicable on the day of invoicing, insofar as this is applicable, and plus any taxes, customs duties and other public charges in the Customer’s country.

(2) Prices or surcharges for shipping and transport are non-binding and may increase in accordance with the changes in tariffs that have occurred.

(3) Price changes are permitted if there are more than six weeks between the conclusion of the contract and the agreed delivery date. If wages, material costs or the market cost prices increase until the delivery is completed, MSD AG is entitled to increase the price appropriately in accordance with the cost increase. The customer is only entitled to withdraw if the price increase not only slightly exceeds the increase in the general cost of living between the order and delivery.

§5 Terms of Payment

(1) Unless otherwise stated in the written order confirmation from MSD AG, the following payment terms apply as agreed:

a) Regarding steam boilers and steaming systems sold (including any other goods and services sold, such as accessories and commissioning, and without prejudice to the amount of the order)

as well as

b) for other standard items sold, the total order value exceeds EUR 10,000 (excluding any applicable VAT):

40% of the order amount is due for payment when the order is placed

60% of the order amount is due for payment after completion of the order and before delivery

c) Otherwise, MSD AG’s invoices are due for payment within 30 days of the invoice date.

(2) All MSD AG invoices are payable without any deductions.

(3) Checks are only accepted for payment. Bills of exchange are not accepted. A payment is only deemed to have been made when MSD AG can finally dispose of the amount.

(4) In the event of late payment, default interest of 9% above the respective base rate will be charged. MSD AG reserves the right to claim further damages caused by delay.

(5) The customer is only entitled to offset if his counterclaims are undisputed or have been legally established. The customer’s right of retention is excluded unless the customer’s counterclaim comes from the same contractual relationship and is undisputed or legally established.

(6) In the event of a deterioration in the financial situation of the customer, his suspension of payment or an application to open insolvency proceedings against the customer’s assets, all claims of MSD AG, including those that have been deferred, are due for payment immediately. At the same time, all planned discounts, bonuses, etc. are considered to have expired, so that the customer has to pay the gross prices charged. In the event of a deterioration in the purchaser’s financial situation, MSD AG is entitled to demand that the purchaser provides MSD AG with sufficient security payments insofar as the fulfillment of MSD AG’s payment claims is endangered due to the deterioration in the financial situation. If, despite a reasonable period set by MSD AG for this purpose, the customer has not provided sufficient security by the end of this period or has not paid the payment claims to be secured by MSD AG, MSD AG is fully or partially entitled to withdraw from the contract.

§6 Delivery Time

(1) For the duration of the delivery time, only the information in the written order confirmation of MSD AG is decisive. If there is several statements of delivery time in the written order confirmation, only the longest delivery time applies.

(2) The delivery time agreed with MSD AG only begins after the order has been completely clarified, in particular all technical and commercial questions, and after fulfillment of all the customer’s obligations for delivery, but at the earliest after sending the written order confirmation from MSD AG and after complete receipt of the advance payment, if any, to be made by the customer in accordance with § 5 Paragraph 1 Letter a) and b).

The delivery time is deemed to have been met if the delivery item has left the MSD AG factory or the readiness for dispatch has been notified by the expiry date.

(3) Compliance with the delivery time is subject to correct and timely self-delivery. If the non-observance of the delivery time is due to incorrect or timely delivery or unforeseen events, such as operational disruptions, strikes, lockouts, rejects of a part that cannot be replaced immediately or necessary changes due to new knowledge etc., the delivery times will be extended accordingly, and also if they occur during a delay in delivery. The same applies if official or other third-party approvals or documents required for the execution of deliveries are not received in good time, as well as if the order is subsequently changed and the purchaser does not meet his obligations to cooperate.

The customer will be informed about such extensions of the delivery time.

(4) If MSD AG is otherwise in arrears, the purchaser can claim compensation in the event of damage of up to 0.5% of the price of the delayed delivery for each full month of the delay, but in no case more than 5% of the order value of the delayed delivery. A claim to a contractual penalty requires the prior written consent of the supplier.

(5) If shipping is delayed at the request of the customer, MSD AG is entitled to calculate the costs incurred by the storage, starting two weeks after notification of readiness for shipping. Storage in its plants is calculated by MSD AG with at least 1% of the invoice amount for each month or the actual storage costs. However, MSD AG is entitled to otherwise dispose of the goods after a reasonable period has been set to no avail and to provide goods to the customer with a reasonably extended delivery time.

§7 Transfer of Risk

(1) The risk passes to the customer at the beginning of loading or dispatch of the delivery item ex works, even if partial deliveries are made or MSD AG performs other services, such as taking over shipping costs or delivery and installation.

MSD AG assumes no liability for transport damage.

(2) If the shipment is delayed due to circumstances for which MSD AG is not responsible, the risk is transferred to the customer from the day of notification that the goods are ready for dispatch.

(3) Insurance against transport damage is at the expense of the purchaser, unless there is proven self-insurance.

§8 Packaging and Shipping

(1) The goods are packaged and shipped at MSD AG’s discretion in the customary manner. MSD AG is not liable for compliance with international packaging regulations.

(2) The packaging is calculated at cost price. A credit note of a maximum of 2/3 of the calculated value if the packaging material is returned free of charge in a reusable condition will only be accepted with prior written approval.

(3) The choice of the transport route and the means of transport is made, if no special instructions are given, to the best of our judgment without any liability for cheaper freight or a shorter route.

(4) If, due to circumstances for which MSD AG is not responsible, the delivery of goods ready for dispatch cannot take place at the scheduled time, their storage at MSD AG or third parties is at the expense of the customer.

§9 Commissioning

(1) The purchaser bears the expenses incurred during commissioning for installer and trigger rates, in particular also for overtime work, work on Sundays and on public holidays according to German law. Travel and waiting times count as working hours.

(2) The customer bears the costs for the outward and return journey, as well as for the transportation of the tools and the luggage.

(3) Commissioning may only be carried out by trained personnel and in compliance with the relevant operating instructions.

§10 Warranty

(1) A prerequisite for all warranty rights of the purchaser is that the purchaser has properly complied with his inspection and notification obligations owed pursuant to Section 377 HGB. This also includes checking all screws for tightness (e.g. chassis, rim, superheater, etc.) after the transfer of risk. MSD AG reserves the right to inspect the indicated defects itself. For this purpose, MSD AG can, at its option, request that the defective delivery item be returned to the MSD AG factory or carry out an on-site inspection at the customer’s registered office.

(2) The limitation period for warranty claims is 12 months, calculated from the transfer of risk. If loading or shipping is delayed due to circumstances for which MSD AG is not responsible, the limitation period for warranty claims begins on the day of notification of readiness for shipment.

(3) In the event of a warranty claim, MSD AG will remedy the defect by means of supplementary performance of its own choice by means of rectification or replacement. The customer must always give MSD AG the opportunity for subsequent performance within a reasonable period; otherwise MSD AG is released from liability for the resulting consequences. If the supplementary performance fails, the customer can request withdrawal or a reduction. However, withdrawal is excluded if the defect is negligible. A warranty right to compensation instead of performance is excluded.

(4) MSD AG bears – insofar as the complaint turns out to be justified – the expenses required for the purpose of subsequent performance, provided that this does not result in a disproportionate burden on MSD AG.

(5) Any warranty is excluded for used delivery items or used parts of the delivery items.

(6) No liability is assumed in particular in the following cases by MSD AG:

Damage due to

– unauthorized changes or repair work by the customer or third parties, which were made without the prior written consent of MSD AG;

– unsuitable or improper use, faulty assembly as well as faulty commissioning and commissioning if the customer or a third party fails to observe the stipulations under § 9 (3) above

– wear or natural wear and tear;

– incorrect or negligent handling, improper maintenance, unsuitable equipment, penetration of foreign bodies, external influences;

as well as

– transport damage.

(7) Insofar as defects relate to delivery items or parts of the delivery items that were not manufactured by MSD AG in-house, MSD AG’s warranty against the customer is limited to claims that MSD AG may have based on the respective agreement with the manufacturer or the supplier is entitled to these. In such cases, other claims of the customer are excluded.

§11 Limitations of Liability

(1) MSD AG is only liable for damages for any legal reason

– in the event of damage caused intentionally or through gross negligence by MSD AG, one of its representatives or vicarious agents;

– in the event of damage to life, limb or health that was culpably caused by MSD AG, one of its representatives or vicarious agents;

– In the case of damage caused as a result of culpable breach of essential contractual obligations by MSD AG, its representatives or vicarious agents, limited to the foreseeable damage typical for the contract.

Any further liability of MSD AG for damages is excluded, in particular liability of MSD AG through no fault of its own, such as damage caused by the non-compliance with national and local regulations for the operation of steam generators or burners by the customer or third parties.

(2) Liability under the Product Liability Act remains unaffected.

(3) If damage is due to fault on the part of MSD AG, one of its representatives or vicarious agents as well as the fault of the customer, the customer must have a corresponding part of the fault credited.

§12 Right of the Supplier to Withdraw

(1) MSD AG is entitled to withdraw from the contract if, after the conclusion of the contract, essential circumstances for the fulfillment of the contract have developed without the influence of MSD AG in such a way that performance is impossible or unreasonably difficult for them (e.g. by MSD AG non liable non-delivery by upstream suppliers or the possibility of delivery only under significantly more difficult conditions).

(2) Claims for damages by the customer due to such a withdrawal are excluded.

§13 Cancellation Costs

If the customer withdraws from an order without authorization, MSD AG can, without prejudice to the possibility of claiming a higher actual damage, claim 20% of the order value for the costs incurred by processing the order and for lost profit. The customer retains the right to provide evidence of minor damage.

§14 Retention of Title

(1) All delivery items remain the property of MSD AG (goods subject to retention of title) until all claims of MSD AG that have grown up and still arise from the business relationship or other legal reason between MSD AG and the purchaser have been completely fulfilled.

In the event of breach of contract by the customer, in particular delay in payment, as well as when filing for insolvency or similar proceedings against the customer’s assets, MSD AG is entitled to take back the goods subject to retention of title and the customer is obliged to return them. If MSD AG takes back the goods subject to retention of title, the return is only considered a withdrawal from the contract if MSD AG notifies the customer in writing.

(2) Insofar as the validity of this retention of title is linked to special requirements or formal requirements in the country of the customer, the customer is obliged to ensure that it is fulfilled at his own expense.

(3) As long as ownership has not yet passed to the customer, he must treat the reserved goods with care and, if necessary, wait. MSD AG is entitled to insure the goods subject to retention of title against theft, fire, water and other damage at the cost of the customer, unless the customer has demonstrably taken out this insurance himself.

(4) The customer may only dispose of the reserved goods in the ordinary course of business. Other dispositions, in particular the pledging of the reserved goods, are not permitted. In the event of seizures or other impairments by third parties, the customer must notify MSD AG immediately and provide MSD AG with all information and documents that are necessary to safeguard MSD AG’s rights. Enforcement officers or a third party must be informed of the property of MSD AG. If third parties are unable to reimburse MSD AG for the judicial and extrajudicial costs of a lawsuit in accordance with Section 771 ZPO, the customer is liable for the loss that MSD AG has incurred.

(5) Processing of the goods subject to retention of title takes place for MSD AG without any obligations arising from this. If the customer processes, mixes and combines their goods with other goods that do not belong to MSD AG, MSD AG is entitled to co-ownership of the new item in the ratio of the value of the reserved goods to the other goods at the time of processing, connection or mixing. If the purchaser acquires sole ownership of the new item, MSD AG agrees with him that he shall grant the latter co-ownership in relation to the value of the processed, combined or mixed goods subject to retention of title to the new item and store them free of charge. The co-ownership rights of MSD AG count as reserved goods in the sense of § 14 (1) sentence 1.

(6) All claims that accrue to the customer from the resale of the goods subject to retention of title, regardless of whether the resale takes place without or after processing, combining or mixing, the customer hereby assigns to MSD AG. MSD AG already accepts the assignment. If the goods subject to retention of title are sold after processing, combining or mixing with other goods not belonging to MSD AG, the assignment of the claim shall apply to the value of the goods subject to retention of title by MSD AG.

The customer is entitled to collect the claims from the resale. The authority of MSD AG to collect the claims itself remains unaffected; however, MSD AG undertakes not to collect the receivables as long as the customer meets his payment obligations properly and is not in arrears and no application has been made to open insolvency or similar proceedings against the customer’s assets. Otherwise, MSD AG can demand that the customer disclose the assigned claims and their debtors, provide all the information required for the collection of claims by MSD AG, hand over the associated documents and notify the debtors of the assignment.

(7) The purchaser must immediately inform MSD AG of all special events affecting the reserved goods (eg loss, damage, etc.). In particular, the customer is also obliged to immediately notify MSD AG of third-party access to the goods subject to retention of title and to the rights assigned to MSD AG.

§15 Place of Performance, Place of Jurisdiction and Applicable Law

(1) The place of performance for delivery and payment is the registered office of MSD AG in 77770 Durbach.

(2) The exclusive place of jurisdiction for all disputes arising from the contractual relationship is the registered office of MSD AG in 77770 Durbach. However, MSD AG is also entitled to sue the customer at his place of business.

(3) For all legal relationships between MSD AG and the customer, the law of the Federal Republic of Germany applies exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG), even if the customer is domiciled abroad.

§16 Misc

(1) Transfer of rights and obligations of the customer from the contract concluded with MSD AG require the written consent of MSD AG to be effective.

(2) Should one of the provisions of these general terms and conditions be or become ineffective, this does not affect the effectiveness of the remaining provisions. The legal regulation applies instead. Under no circumstances will the relevant provision in these general terms and conditions be replaced by the buyer’s terms and conditions.

(3) MSD AG is entitled to process and save the data received in connection with the business relationship with the customer within the framework of the Federal Data Protection Act and the General Data Protection Regulation.

(4) Insofar as the written form is required in these general terms and conditions for declarations, notifications etc., it is also met through the transmission of faxes or emails.

§17 Additional Terms and Conditions for Rental and Contract Steaming Work

(1) The following conditions apply to the rental of steam boilers and steaming systems under section 17 (1) to (11) and (13) and for contract steaming work commissioned to MSD AG the following conditions apply under section 17 (12) and (13) :

(2) MSD AG will keep the rental object ready for collection at its headquarters in 77770 Durbach or, if agreed in writing with the customer, bring it to dispatch. Any agreed shipping is at the cost and risk of the customer. The purchaser must return the rented item to the seat of MSD AG in 77770 Durbach at his own expense and risk.

(3) The purchaser must give MSD AG the exact location where the rental object will be used. He must also immediately inform MSD AG of the change of location.

(4) MSD AG or its representative have the right to inspect the rental property at any time in order to ensure that it is present and in good condition, whereby the interests of the customer must be taken into account.

(5) The agreed rent is for the rental property itself. All other costs such as for loading and unloading, transport, insurance, fuel and consumables etc. are calculated separately by MSD AG.

(6) MSD AG is entitled at any time to request a rental deposit based on the amount of the rent. The rental deposit is interest-free.

(7) The lease concluded for a certain rental period ends at the end of the agreed rental period and cannot be terminated properly.

(8) The purchaser is obliged to protect the rental object against overuse and incorrect use in every way and to carry out the proper and professional maintenance and care of the rental object at his own expense.

(9) If repair and inspection work is necessary, the customer must announce this to MSD AG in good time and then have it carried out immediately by MSD AG or one of its agents.

(10) In the event of attachments or other interventions by third parties in the rented property, the purchaser must notify MSD AG immediately and send it all the documents necessary for an intervention and immediately inform the third party thereof in writing.

(11) The customer may not grant a third party any rights of use to the rental property, nor may he transfer rights from the rental agreement.

(12) In the case of contracted steaming work, MSD AG assumes no liability for the quality or quantity of the harvested products obtained on the soils and soils steamed by MSD AG.

(13) For the rental of steam boilers and steaming systems and for contract steaming commissioned to MSD AG, the above provisions of these general terms and conditions (§ 1 to § 16) apply, insofar as these provisions are applicable to these services of MSD AG.