1. General Provisions
||NOVA's offers are directed exclusively to businesses as defined in section 14 (1) of the BGB (German Civil Code), to governmental entities and special governmental estates. Proof of this status is to be provided to NOVA upon request. When placing an order, the Customer simultaneously confirms that it orders the products as a part of its commercial or free-lance professional activities or its public-law purposes.
||These Standard Terms and Conditions shall be exclusively binding for all business relations with the persons specified in clause 1.1. Any standard terms and conditions used by the Customer shall only apply if NOVA has expressly approved of them in writing. These Standard Terms and Conditions shall not apply if, in exceptional cases, contracts are entered into with consumers.
||NOVA expressly reserves the right to modify with regard to their content, or to amend, these Standard Terms and Conditions for individual transactions, through a corresponding written amendment. Verbal ancillary agreements shall only be valid if they have been confirmed by NOVA in writing.
||Any agreements entered into by the contracting parties in an individual case (including ancillary agreements, amendments and modifications) shall, provided they have been confirmed in writing, always take priority over these Standard Terms and Conditions.
||The business relations between NOVA and the Customer shall be governed by the law of the Federal Republic of Germany, to the exclusion of the Convention on Contracts for the International Sale of Goods (CISG). Pulheim, Germany, shall be the place of jurisdiction, provided that the Customer is a business, a governmental entity or a special governmental estate.
||The language of the contract shall be German.
2. Content and conclusion of the contract
||NOVA's written order confirmation shall be binding with regard to the contents of the contract.
||The Customer is aware of the fact that NOVA is not the manufacturer of the offered products. Therefore, any delivery dates specified by NOVA shall only apply to goods stored in the warehouse. For goods which we need to order, specified delivery dates shall always be non-binding.
||Delivery periods specified by NOVA shall only commence after final clarification of details regarding performance, and of technical or commercial issues, in as far as these originate from the Customer's sphere of influence. Delivery periods shall be deemed to have been complied with if notification of readiness for shipment has been made or if the product has left our warehouse prior to the expiry of such period.
The Customer shall not be entitled to withdraw from the order if the delay which has been caused is reasonable taking into consideration the specific circumstances of the individual case. Except if NOVA is at fault regarding the non-compliance with an expressly agreed deadline or the default for other reasons, the Customer shall be obligated to grant NOVA a reasonable period of grace. A period of grace is not required to be set if the contract is a fixed-date transaction (Fixgeschäft) or if the Customer, due to default in delivery for which NOVA is responsible, is entitled to invoke that its interest in the fulfilment of the contract has ceased to exist.
||artial deliveries shall be permitted.
||Goods which have been made available for shipment but not called off shall be stored at the Customer's cost and risk.
||If NOVA in individual cases agrees to the cancellation of an order as a goodwill gesture, such cancellation shall only become binding through our written confirmation.
||Strikes, delays in transport and supply (including delays in the sphere of suppliers and carriers), administrative prohibitions and similar events which occur outside our sphere of influence shall suspend and reasonably extend any delivery periods.
4. Scope of delivery, order confirmation
||NOVA's written order confirmation (clause 2) shall be binding with regard to the scope of delivery. Any modifications regarding construction or form which have taken place in the meantime and which are attributable to improvements in technology and/or to legislative requirements shall be permitted throughout the delivery period, provided that the delivery object is not substantially modified, and provided that the modifications are reasonable for the Customer. NOVA shall inform the Customer of such modifications as soon as NOVA learns thereof.
5. Retention of title, offsetting
||The supplied goods shall remain NOVA's property up until all claims under the contract have been fulfilled, including such from the ongoing business relations, up until all claims which NOVA holds against the Customer have been settled.
If NOVA accepts returned ordered goods, this shall not constitute a withdrawal from the contract, except if NOVA issues an expressed written declaration to this effect. In the event of seizures or other intrusions by third parties into the ordered goods, the Customer shall promptly inform NOVA in writing, in order for NOVA to be able to file action pursuant to section 771 of the ZPO (German Civil Procedure Code).
||The Customer shall have the right to resell the delivered goods within its ordinary course of business; however, it hereby assigns to NOVA all claims, amounting of the sum invoiced by NOVA to the Customer (including value added tax as applicable at such date), which originate vis-à-vis its clients or third parties on account of the resale, irrespective of whether the delivery object is resold without, or after, processing. The Customer shall continue to be entitled to collect such claims even after the assignment. NOVA's right to itself collect such claims shall remain unaffected. However, NOVA hereby undertakes to not collect such claims as long as the Customer properly fulfils its payment obligations and is not in default of payment. Should the Customer be in default of payment, NOVA shall have the right to request that NOVA be informed of the assigned claim and its debtor and be provided by the Customer with all information required for collection as well as the associated documents, and that the third party be informed of the assignment by the Customer.
||Any processing or transformation of the ordered goods by the Customer shall always be considered to be carried out on behalf of NOVA. If the ordered goods are processed together with other objects which do not belong to NOVA, NOVA shall obtain co-ownership in the new object, in the proportion of the value of the ordered goods in relation to the value of the other processed goods at the time of processing. The provisions set out for the purchased goods delivered under retention of title shall also apply to the object created by processing.
||If the delivered goods are inseparably compounded with other objects which do not belong to NOVA, NOVA shall obtain co-ownership in the new object, in the proportion of the value of the ordered goods in relation to the value of the other compounded goods at the time of compounding. If compounding is carried out in a manner such that the Customer's good is to be regarded as the main object, the Customer hereby transfers to NOVA a pro-rata share of co-ownership to the above extent in the main object - the declarations required in this context are hereby issued. The Customer shall keep on our behalf such sole ownership or co-ownership.
||In order to safeguard NOVA's claims against the Customer, the Customer hereby assigns to NOVA all claims which it obtains against third parties due to the joining of the ordered goods with real estate.
||NOVA shall have the right to request immediate surrender of the ordered goods and the assertion of the claims against the third party in the event of an important cause, in particular in the event of bill of exchange or cheque protests, applications for the opening of insolvency proceedings or if similar justified indications exist that the Customer is insolvent. In such cases, the fiduciary collection authorisation shall be deemed to have been revoked.
||NOVA undertakes to release any securities to which it is entitled, upon the Customer's request, in as far as their value exceeds the value of the safeguarded claims, provided such claims have not yet been settled, by more than 10%.
||The Customer shall only have offsetting rights if its counterclaims have been acknowledged by NOVA or have been determined in a final and conclusive manner. The Customer shall only be entitled to exercise retention rights in as far as its counterclaim is based on the same contract. The above provisions shall not apply with regard to warranty claims which the Customer may hold.
6. Packaging, shipment, acceptance and passing of risk
||The ordered goods shall be packed and shipped on behalf, and for the account, of the Customer - packaging and shipment shall be invoiced separately. The Customer shall become the owner of the packaging and shall not return packaging to NOVA. Any costs incurred, such as costs of disposal, shall be borne by the Customer. For deliveries abroad, bank fees which may apply shall be invoiced separately, in addition to the transport and packaging costs.
||NOVA shall have the right to choose the method of shipment. Shipments shall always be uninsured. Irrespective of this, NOVA shall have the right (but not the obligation) to insure the goods to be shipped against all types of transport risks, at the Customer's cost.
||Except if agreed otherwise, deliveries shall be made EXW Pulheim. For shipments made by NOVA, the risk shall pass to the Customer upon handing over of the goods to the transport representative.
||The Customer shall be obligated to examine the goods upon receipt - if the goods are delivered in several consignments, every consignment - in accordance with all technical requirements and reasonable examination methods, if applicable also at its clients' premises; this shall be done without fail prior to the installation of the ordered goods, in particular prior to the installation into other components. If defects only show upon commencement of production or installation, production and installation must be stopped immediately. In all of the above cases, the Customer shall immediately notify NOVA and shall provide NOVA with the opportunity of carrying out an examination, including inspection, conduction of test runs and inspection of documents.
Notification of obvious defects must be made without delay - not later than within 7 (in words: seven) days - after receipt. Otherwise, claims on account of such defects can no longer be asserted against NOVA. If the defect could not be detected during the examination and only shows at a later date, a corresponding notification to NOVA must be made without delay after the defect has been detected; should this notification not be made, the delivery shall be deemed to have been approved, in spite of the defect. The timely dispatch of the notification of defects shall suffice in order to secure the Customer's rights.
7. Information on quality and other information
||Information provided in data sheets, catalogues, leaflets and other printed material or electronic documents designed for an indefinite number of recipients shall not constitute a guarantee of specific features. In particular technical requirements and information on the intended purpose of use of the ordered goods shall only become a part of the contract if NOVA has confirmed them in writing. In all other cases, NOVA does not assume any responsibility that ordered goods are suitable for the application and use intended by the Customer, but rather only assumes the general warranty obligations as set out in clause 9.
8. Prices and terms of payment
||Prices always are net, free place of dispatch, so that statutory value added tax as applicable on the day of issue of the invoice will always be shown separately in the invoice. All prices and ancillary costs shall be governed by the rates applicable at the time of delivery.
||Should market cost prices for the ordered goods increase during the time between the placement of the order and delivery, NOVA shall have the right to adequately increase the price, in accordance with the increase in the market cost price. Should such increase be out of proportion compared to the increase in general costs of living, the Customer shall have the right to withdraw from the contract (Rücktritt).
||Except if expressly agreed otherwise, deliveries shall be executed exclusively against cash in advance.
||Deduction of cash discounts requires a separate written agreement. The purchase price shall be due for immediate net payment (without deductions) upon receipt of the invoice by the Customer, except if a different payment period is specified in the order confirmation.
||Any taxes, duties, customs fees etc. imposed on the transaction in the receiving country shall not be borne by NOVA; the aforesaid are to be borne by the Customer.
||Partial payments shall always be set off against the earliest claim.
9. Warranty, liability
||Any warranty claims which the Customer may hold on account of material defects or defects in title in the ordered goods shall, provided that the Customer is a governmental entity, a special governmental estate or a business exercising its commercial or free-lance professional activities, only exist if the Customer has duly complied with its duties of examination and notice of non-conformity pursuant to section 377 of the HGB (German Commercial Code).
||In the event of a justified notice of non-conformity regarding a defect, NOVA shall, to the exclusion of the Customer's right to withdraw from the contract or to reduce the purchase price, be obligated to provide replacement or rectification (Nacherfüllung), except if NOVA is justified in refusing such replacement or rectification due to statutory provisions. The Customer shall grant NOVA an adequate period of grace for replacement or rectification. Replacement or rectification may be effected by eliminating the defect (rectification) or supplying a new product (replacement). During replacement or rectification, a reduction of the purchase price and a withdrawal from the contract on the part of the Customer shall be excluded. If replacement or rectification fails, the Customer shall have the right, at its choice, to either request a reduction of the purchase price or to declare its withdrawal from the agreement. The Customer's right to assert further damages subject to the following provisions (clause 9.3) shall not be affected by the above.
||In the event of intent or gross negligence, NOVA's liability shall be governed by the statutory provisions. Liability for guarantees shall exist irrespective of whether NOVA is at fault. In the event of slight negligence, NOVA shall only be liable in accordance with the provisions of the ProdHaftG (Product Liability Act) and/or if such act causes the death of a person, bodily injury or adverse health effects and/or if material contractual duties have been violated (including claims on account of default in delivery if the contract relates to a fixed-date transaction or if the Customer, due to a default in delivery for which NOVA is responsible, has the right to invoke that its interest in a performance of the contract has ceased to exist). However, claims for damages for slightly negligent breaches of material contractual obligations shall be limited to the foreseeable damage which typically occurs in connection with such contracts, except if liability relates to the death of a person, bodily injuries or adverse health effects. Any liability on the part of NOVA which goes beyond the above provisions shall be excluded. In as far as NOVA's liability is excluded or limited, this shall also apply with regard to the personal liability of NOVA's employees, workers, staff members, representatives and vicarious agents.
||The warranty period shall be 12 (twelve) months, provided that the Customer is a governmental entity, a special governmental estate or a business exercising its commercial or free-lance professional activities. In all other cases, the statutory warranty period shall apply.
10. Return shipments
||Any goods which NOVA has delivered properly and in accordance with the contractual agreements shall not be taken back. If a deviating regulation is to be agreed, this must be in writing. If a written agreement has been reached regarding the admissibility of a return shipment, such shipments shall be made freight prepaid.
||In the event of an unjustified withdrawal from the contract by the Customer, NOVA shall - notwithstanding the possibility of asserting actual damage going beyond this - have the right to request lump-sum damages amounting to 10% of the remuneration agreed for the contract which is subject to such withdrawal. The Customer shall have the right to provide proof that NOVA has not incurred any damage, or only lesser damage.
11. Right to withdraw
||In the event of a negative credit report from a recognised credit agency, such as Bürgel or Creditreform, NOVA shall have the right to withdraw from the contract, except if the Customer pays cash in advance. The same shall apply if the Customer's financial situation deteriorates substantially. If a contract has already been partially fulfilled, NOVA shall have the right - at its choice - to either withdraw from the part of the contract which has not yet been fulfilled or from the contract as a whole, except if the Customer has paid cash in advance for the unperformed part of the contract or if the fulfilment of the contract by the Customer is ensured in another manner.
12. Assignment of rights and obligations
||The Customer may not assign to third parties any rights which it holds against NOVA, except with NOVA's expressed written approval. The assignment of claims without such approval shall be excluded.
13. Final Provisions
||Upon placement of an order, NOVA's Standard Terms and Conditions shall be deemed to have been accepted. Should one of the provisions in these Standard Terms and Conditions be invalid or void or infeasible, whether entirely or in part, and irrespective of the reasons thereof, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by the relevant statutory provision.
Pulheim, February 2014 Rev. 04