AGB

I. Scope of Application of these General Terms and Conditions

1. These General Terms and Conditions shall apply exclusively to companies in terms of Sections 310 (1) and 14 German Civil Code (BGB).

2. These General Terms and Conditions shall apply exclusively. We shall not acknowledge conflicting terms and conditions or those deviating from these Terms and Conditions unless we had expressly agreed to them in writing. The Terms and Conditions shall also apply if we perform the service unconditionally despite being aware of the customer’s conflicting or deviating terms and conditions.

II. Conclusion of Contract, Contents of Contract

1. The contract shall only become effective when we have issued a written order confirmation or delivered the services agreed upon. We are, however, obligated to inform the customer in writing without delay should the order be rejected.

2. Our offers are non-binding. The customer shall be bound to their offer for a maximum of two weeks.

3. Only that which is recorded in writing shall constitute a valid agreement.

4. Customary contract terms that refer to the type of sale (e.g. CIF, FOB, CIP etc.) are interpreted in line with the Incoterms of the International Chamber of Commerce, Paris valid at the time of the conclusion of contract.

III. Prices and Payment

1. The prices represent the value of the goods and services and exclude any discounts and other reductions, but include loading, packaging, freight, transport and possibly insurance cover based on special agreements as well as value added tax.

2. Payment must be made in EUR.  This shall become due when the invoice or another billing document is handed over or mailed.

3. Terms of payment (unless otherwise agreed): Payment must be made within 14 days from due date without deductions.

4. Default interest is set at 9 percent above the respective base interest rate. The assertion of additional damages is not excluded and we are specifically entitled to levy a higher rate interest on arrears if we are able to justify this.

5. Payment instructions, cheques and bills of exchange shall only be accepted for payment by charging all discount and collection fees.

IV. Limitations on the Right of Offset and the Right of Retention

1. The customer may only offset our claims if their counterclaim has been legally determined, is undisputed, entails mutuality of obligation with respect to our claims according to Section 320 German Civil Code or has been accepted by us.

2. The customer only has a right of retention with regard to counterclaims from the same legal relationship if they are undisputed and legally determined as well as if the counterclaim entails mutuality of obligation with respect to our claim according to Section 320 German Civil Code.

V. Delivery, Delay in Delivery

1. We are entitled to provide partial services and partial deliveries to an acceptable extent.

2. The start of the delivery period quoted by us requires that all technical issues have been clarified.

3. Adhering to our delivery obligations further requires the timely and proper fulfilment of the customer’s obligations. The defence of an unfulfilled contract shall remain reserved.

4. Should the customer default in acceptance or culpably breach other duties to cooperate, we are entitled to demand that the damage thus caused including possible extra expenses are reimbursed. Further claims or rights remain reserved.

5. Should the circumstances in point V.4. exist, the risk of accidental loss or accidental deterioration of the object of purchase shall pass to the customer at the moment they are in default of acceptance or of payment.

6.  Delivery dates or delivery periods, which can be agreed upon as being binding or non-binding, must be specified in writing. Delivery periods begin on conclusion of contract. Should contract changes be agreed upon subsequently, it is necessary to agree on a new delivery period or delivery date at the same time.

7. The delivery period has been adhered to if the purchased item has left our premises before the period expires or the notification of readiness for shipment has been dispatched.

8. Three weeks after a non-binding delivery date or a non-binding delivery period has expired, the customer can send us a written request to make delivery within an appropriate period. We shall be in default only after receiving this demand. This shall not apply if the aforementioned extension of time is unreasonably long; in this case, adequate respite shall apply.

VI. Force Majeure/Self-Delivery

Should we, for reasons beyond our control, not receive goods and services from our sub-suppliers, which are required to fulfil our contractually owed delivery or service, or they are incorrect or not on time, despite having ensured sufficient covering in line with the quality and quantity stipulated in the delivery agreement with the customer before concluding the contract with the customer or if incidences of force majeure occur, we shall inform the customer in writing or in text form in good time. In this case, we are entitled to delay the delivery for the duration of the obstruction, as long as we have met our aforementioned information obligation and we have not assumed the procurement risk or a delivery guarantee. Included in force majeure: strike, lock-out, official interventions, energy and raw material shortages, non-culpable transport bottlenecks or obstacles, non-culpable business disruptions – e.g. fire, water and machine damage – and all other obstacles that, when regarded objectively, we are not responsible for.

VII. Transfer of Risk

1. The risk irrespective of possible installation duties shall pass to the customer when delivery is made to the shipping agent, at the latest, however, when leaving our premises.

2. Defect claims may only be made by the customer if they have met their inspect and notify obligations owed pursuant to Section 377 German Commercial Code (HGB)

VIII. Warranty

1. In the event of only minor material and legal defects, we are entitled to repair twice. Should the type of item or defect or other circumstances reveal that due to these the repair has not yet failed and an additional repair should be reasonably acceptable to the customer, we have the right to do another repair.

2. Warranty claims shall become statute-barred within 1 year of the beginning of statutory period of limitation. This shall not apply to damage claims due to defects as well as claims under the Product Liability Act. Point IX shall apply to compensation claims due to defect. Provided nothing else is stipulated in Point IX, the statutory period of limitation shall apply to all claims also when they are based on a breach of the duty to repair defects. The limitation periods in the case of a right to recourse for deliveries pursuant to Sections 478, 479 German Civil Code shall remain unchanged.

IX. Liability for Damages

1. We assume liability in accordance with the statutory provisions unless otherwise agreed.

2. With regard to negligence, as long as it is not gross negligence, we are only liable

a) in the event of injury to life, limb or health or

b) in the event of a breach of essential contractual duties; in this event, however, as long as it does not involve injury to life, limb and health, liability is limited to the typical and foreseeable damage. Essential refers to contractual duties whose fulfilment enables the proper implementation of the contract in the first place and the adherence to which the contract partner can regularly rely on.

3. We limit our liability for negligently caused damages, as long as they were not caused gross negligently, to EUR 2,500,000.00 for every single case. This shall not apply if the law requires a higher amount or if it involves an injury to life, limb and health.

4. In the event of an injury to life, limb or health, the customer’s liability claims become statute-barred according to statutory provisions. For the rest, liability for negligently caused damages, provided they were not caused gross negligently, is 1 year after the start of the statutory limitation period.

5. Should we not be liable pursuant to the aforementioned Points IX. 2.-4., the liability of our employees, representatives and agents shall also be excluded.

6. The above limitations of liability in Points IX.2.-5. shall not apply to claims under the Product Liability Act.

X. Retention of Title

1. We shall retain the title to the object of purchase until all payments arising from the business relationship with the customer have been received. The customer is obligated to store the objects free of charge with the care of a prudent businessman; they are, in particular, obligated to take out sufficient insurance cover against fire, water and theft damages on the replacement value, at their cost.

2. The object of purchase may not be pledged or used as security. In the event of pledges or any other measures by third parties to access the object of purchase, the customer must inform us immediately in text form and provide us with all documents we require to protect our rights and file third party proceedings.

3. The customer is entitled to process and resell the object of purchase within the context of normal business operations, as long as they are not in arrears. They already assign all claims against the buyers or third parties arising from the sale of the object of purchase to us in the amount of the invoice value (invoice final amount including value added tax) of the delivered object of purchase at conclusion of the sales contract. This shall apply irrespective of whether the object of purchase was resold without or after processing. The customer remains entitled to collect the claim even after its assignment. However, our right to collect the claim ourselves shall not be affected. We undertake though, not to collect the claim ourselves as long as the customer meets their payment obligations properly, does not fall into arrears and has not initiated insolvency proceedings. In the case of default of payment or the initiation of insolvency proceedings, the customer’s right to sell the object of purchase as well as the right to collect assigned claims from the customer’s buyers expires. In this case, the customer is obliged to give us all the information required to collect the claim, hand us the necessary documentation and disclose the assignment to the third party.

4. Amounts that the customer collects from assigned claims must be kept in a separate account until being transferred to us, in order to avoid miscalculations and/or off-sets with debit-side bank accounts.

5. Processing or restructuring the object of purchase undertaken by the customer is always done for us. If the object of purchase is combined with third-party items, we shall acquire co-ownership of the new item in relation to the value of the object of purchase (invoice final amount including sales tax) compared to the other processed items at the time of processing. Furthermore, the same shall apply to the object created through processing as does to the object of purchase delivered under reserve.

6. If the object of purchase is inseparably mixed with third-party items, we shall acquire co-ownership of the new item in relation to the value of the object of purchase (final invoice amount including value added tax) compared to the combined items at the time of mixing. If mixing occurs in such a way that the customer’s item should be seen as the main item, it is agreed that the customer shall transfer co-ownership to us. The customer stores the resulting sole ownership or co-ownership thus created on our behalf.

7. Should the liquidable value of the securities provided on our claims exceed our claims by more than 10 %, we are committed to retrocession according to our own discretion upon demand from the customer to the extent that the security limit has been exceeded.

XI. Property Rights and Copyrights

We shall retain the property rights and copyrights to all pictures, drawings and calculations as well as other documents. This shall also apply to any written documents marked “confidential”. Before disclosure to third parties, the customer requires our express consent in writing.

XII. Choice of Law and Jurisdiction, Place of Fulfilment, Legal Venue

1. German law shall apply to all contracts excluding the United Nations Convention on the International Sale of Goods (CISG) and German private international law.

2. The place of fulfilment shall be our head office.

3. If the customer is a merchant, the exclusive legal venue for all disputes arising from the contract shall be the court responsible for our head office. We are, however, entitled to bring action against the customer in the court responsible for their residence or their place of business.