§ 1 General Information – Scope

(1) Our General Terms and Conditions – hereinafter also referred to as GTC – shall exclusively apply to any and all offers to you, legal transactions with you as our customer – hereinafter also referred to as Customer, especially all and any deliveries and services to you as our Customer – hereinafter also referred to as Performance or Performances. These GTC shall also apply to any and all offers, legal transactions, especially performances, to the customer without reservation although being aware of any conditions of the customer conflicting with or deviating from our GTC. Even in such cases, we shall not accept any regulations in the customer’s terms and conditions that contradict or deviate from our GTC unless we have expressly agreed to their validity in text form.

(2) Any and all agreements concluded between us and the customer for the purpose of entering into this contract or executing this contract are made in text form in this contract.

(3) Our GTC shall only apply for business persons in the sense of § 310 Abs. 1 BGB (German Civil Code).

(4) Such GTC shall also apply for any and all future business transactions between us and the customer and any and all performances to the customer, insofar as these business transactions and performances relating hereto.

§ 2 Offer – Offer Documents

(1) Any and all our offers are basically without engagement and subject to confirmation. They merely constitute the invitation to submit a binding offer to the customer, as far as nothing to the contrary has expressly been ruled in the own declaration.

(2) Where the customer’s order can be qualified as an offer according to § 145 BGB (German Civil Code), we can accept it within 2 weeks. Such acceptance can also be affected by transmitting an order acknowledgement, forwarding an invoice or delivering the performance to the customer.

(3) We reserve proprietary rights and copyrights to any illustrations, drawings, calculations as well as in any other documentation. This shall also and especially apply to such documentation transferred to the customer written or in text form and referred to as „confidential“. Such documentation shall not be passed on to third parties without our prior explicit consent in text form.

§ 3 Prices – Terms of Payment

(1) Unless nothing contained in the order acknowledgment results to the contrary, our prices shall be deemed „ex works“, i.e. from the location of our registered office, packing, freight, transport, set-up, customs duties or any other charges excluded; such costs shall be invoiced separately.

(2) Unless expressly stated otherwise, the statutory Value Added Tax (VAT) is not included in our prices; it will be shown separately in the invoice at the statutory on the date of invoicing.

(3) We are entitled to assign any claims arising from the business relationship, to third parties; this shall in particular apply to our payment claims.

(4) A separate agreement in text form is required for any deduction of discounts.

(5) Where nothing contained in our order acknowledgement results to the contrary, the remuneration (the price) shall be due for payment net (without deduction) within 14 days from invoice date. The legal regulations relating to the consequences of delay in payment shall apply.

(6) In the event of default of payment by the customer, the statutory provisions shall apply; in particular, default interest at a rate of to 9 % p.a. above the valid basic interest rate shall be charged. The right to assert a higher damage caused by default remains reserved. Where we assert a higher damage caused by default, the customer shall have the right to furnish evidence of the fact that the asserted damage caused by default has not been incurred at all or that it has been incurred at least to a considerably lower extent.

(7) The customer shall only be entitled to set-off rights where its counterclaims have been validly established in law, are undisputed or have been acknowledged by us. Moreover, the customer shall only be entitled to exercise a right of retention where its counterclaim is based on the same contract.

§ 4 Scope of Performance and Performance Time

(1) The beginning of the performance and/or delivery time stated by us implies that we have received any and all information and documents required for the execution of the order and any down payments or advance payments which may have been agreed; it also presupposes the timely provision of materials and the prior clarification of all organizational and technical questions, if agreed..

Unless expressly agreed otherwise, any specified performance and/or delivery dates stated shall only be deemed presumable shipping or delivery dates which may change. Such shipping or delivery dates shall only be binding for us where expressly confirmed by us to be binding

(2) Furthermore, the adherence to our performance and/or delivery obligations shall also be subject to the timely and proper fulfilment of the customer’s obligations. Where a customer particularly fails to meet its payment obligations, we shall be entitled to refuse the performance in full or in part until payment of the amounts due or provision of security is received. The defense of non-performance of the contract shall remain reserved.

(3) Where the customer is in default of acceptance or culpably infringes any other duty to collaborate, we shall be entitled to demand compensation for any damage incurred by us in this respect, including any additional expenses. Further claims or rights shall remain reserved. The customer shall be reserved the right to furnish evidence of the fact that the damage in the demanded amount has not accrued at all or at a much lower amount.

(4) Insofar as the conditions under (3) are met, the risk of impossibility of performances, particularly incidental loss or incidental deterioration of the items or products to be supplied by us shall transfer to the customer at such point in time when the customer is in default of acceptance or debtor’s delay.

(5) We assume liability according to the statutory provisions insofar as the underlying contract is a firm deal in the sense of § 286 (2) no. 4 BGB (German Civil Code) or of § 376 HGB (German Commercial Code). We also assume liability according to the statutory provisions where – as a consequence of a delay for which we are responsible – the customer is entitled to assert that its interest in any further performance of the contract has ceased.

(6) Furthermore details of our liability are regulated in § 7 Liability.
(7) Any further legal claims and rights of the customer shall remain reserved according to § 7 Liability.

§ 5 Transfer of Risk, Packing Costs, Insurance

(1) Unless otherwise stated in our order acknowledgement or the specific individual contract, performance „ex works“ is agreed.

(2) Separate agreements shall apply with regards to taking back any packaging; in the absence of such agreements, the statutory provisions shall apply.

(3) Where the customer so requests and where it is possible, we shall take out insurance for our services, e.g. cover the delivery with a corresponding transport insurance policy; the cost for such insurance shall be borne by the customer.

§ 6 Warranty

(1) Warranty claims of the customer imply that the customer has duly met its obligations to inspect and give notice of defects according to § 377 HGB (German Commercial Code).

(2) In case of doubt, the type and scope of the services to be rendered and the agreed quality of the subjects of performance shall be determined exclusively by our binding service and product description. Usual, particularly customary deviations and other reasonable deviations in place, time and kind of performance or in color or in measures of the performance are no defect. References to technical standards are only in use of performance specification; these are no quality guarantee at any time. Unless expressly otherwise agreed, the services shall be rendered in accordance with the standard customary in the industry and the subjects of performance shall be manufactured using materials customary in the industry and in accordance with manufacturing processes customary in the industry or otherwise recognized.

(3) Where the advice is given to the customer outside the scope of services owed under the contract, liability for the function ability and the suitability service and/or the object of the service shall only exist where previously expressly warranted.

(4) If there is a fault or a defect in the service to be rendered or in the goods or services to be delivered the customer shall be entitled, at its option, to subsequent performance in the form of rectification of the defect in the service or goods or to delivery of a new, defect-free goods or services. In case of rectification of defects or replacement delivery; we shall be obliged to bear any and all costs necessary for the purpose of subsequent performance, in particular transport, travel, labor and material cost insofar as they do not increase due to the fact that the object of performance was transported to a place other than the place of delivery.

(5) In the event where the supplementary performance fails, the customer shall be entitled, at its option, either to rescind the contract or to demand a reduction in the purchase price.

(6) The statutory period of limitation for warranty claims, in particular warranty claims arising from the sale of goods or services is 12 months, calculated from the date of delivery.

§ 7 Liability

(1) We assume liability according to the statutory provisions where the customer asserts claims for damages due to intent or gross negligence including intent or gross negligence on the part of our representatives or our vicarious agents. Insofar as not accused for intentional breach of contract, liability for damages shall be limited to the foreseeable and typically occurring damage.

(2) We shall be liable in accordance with the statutory provisions insofar as we culpably infringe a material contractual obligation; however, in such case, the liability for damages shall be limited to the foreseeable and typically occurring damage. A material contractual obligation exists where the breach of duty relates to an obligation the fulfilment of which the customer relied on and was entitled to rely on.

(3) Where the underlying objects of performance are used items, warranty claims, in particular claims based on defects are excluded.

(4) The liability for culpable injury to life, body or health shall remain unaffected hereof; this shall also apply to the mandatory liability under the German Product Liability Act.

(5) Insofar as nothing has been ruled to the contrary above, liability shall be excluded.

§ 8 Joint Liability

(1) Any liability for damages beyond the one stated under § 6 and § 7 shall be excluded – regardless of the legal nature of the asserted claim. This shall in particular apply to any claims for damages arising from culpa in contrahendo other breaches of duty or tortious claims for compensation for material damage pursuant to § 823 BGB (German Civil Code).

(2)The limitation pursuant to section (1) shall also apply where the customer demands reimbursement of useless expenses stead of a claim for damages.

(3) Insofar as our liability for damages is excluded or limited, this shall also apply with respect to the personal liability for damages for our employees, staff, co-workers, representatives and vicarious agents.

§ 9 Waranty and/or Liability in Case of Partial Services and/or Provisions of Material by the Customer

(1) Where partial services, items or materials are provided by the customer, the full warranty and liability for such services, partial services and items lies solely with the customer.

(2) The customer assumes warranty and is liable for the fact that such partial services, items or materials are available in time, as agreed and suitable for the execution of the present order, in particular for the performance and execution of the present event, in type and scope. Where the customer fails to perform such partial services or to deliver such items or materials on time, our performance period shall be extended accordingly in a reasonable proportion. Except in cases of force majeure, the customer shall bear the resulting additional costs, also for disruptions and/or interruptions of the order event in question.

§ 10 Reservation of Title

(1) We reserve the title to the goods to be delivered by us until any and all pecuniary claims of which we are entitled under the business relationship have been satisfied. Where the customer breaches the contract, including but not limited to a default in payment, we shall be entitled to take back the goods. Where we take back the goods, this shall constitute as a withdrawal from the contract. After having taken back the goods, we shall be entitled to realize them; the proceeds of such realization shall be set off against the customer’s liabilities – less reasonable realization costs.

(2) We are entitled to assert our rights resulting from the reservation of title, in particular to take back the goods delivered under reservation of title, without prior withdrawal from the respective contract.

(3) The customer shall be obliged to treat the goods with care; this shall particularly include the obligation to take out sufficient insurance at its own expense against fire, water and theft at the reinstatement value. Where maintenance and inspection work is required, the customer shall perform such work at its own expense and in good time.

(4) In the event of seizures or other interventions by third parties, the customer shall inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO (Civil Code of Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extra- judicial costs of an action pursuant to § 771 ZPO (Civil Code of Procedure), the customer shall be liable for the loss incurred by us.

(5) The customer shall be entitled to resell the goods in the ordinary course of business; however, it hereby assigns to us any and all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue for the customer from the resale vis-à-vis the purchaser or third parties, regardless of whether the goods were resold without or after processing. The customer shall remain entitled to collect such claim even after the assignment. Our right to collect the claim ourselves shall remain unaffected hereof. However, we undertake to refrain from collecting the claim as long as the customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, have not filed for insolvency or suspended payments. However, in such case we may require that the customer informs us of the assigned claims and the respective debtors, provides any and all information necessary for collection, hands over the necessary documents and informs the debtors (third parties) of the assignment.

(6) Any processing or transformation of the goods by the customer shall be affected on our behalf. In the event where the items are processed with other items which do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the items (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the items delivered subject to reservation of title.

(7) In the event where the goods are inseparably mixed with other items that do not belong to us, we shall acquire co-ownership of the new goods in proportion to the value of the items (final invoice amount, including VAT) to the other mixed items at the time of mixing. Where the goods are mixed in a way that the customer’s item is to be considered the main item, it shall be deemed agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.

(8) The customer shall also assign to us any and all claims to secure our claims against it arising against a third party due to the connection of the items with a real estate.

(9) We undertake to release any securities we are entitled to at the customer’s request, insofar as the realizable value of our securities exceeds the claims to be secured by more than 20 %; the choice of the securities to be released shall be incumbent on us.

§ 11 Industrial Property Rights and Defects of Title

(1) Where we deliver performances according to drawings, models, samples, using parts provided by the customer or designs of the customer or other specifications, the customer shall be responsible for ensuring that this will not infringe any industrial property rights of third parties in the country of destination of the performances. We shall inform the customer of any rights known to us but we are not obliged to conduct our own research. The customer shall indemnify us from any claims of third parties upon first demand and to reimburse any damage arising therefrom. Where a third party prohibits us from rendering performance, in particular services and/or delivering the goods by invoking a property right to which it is entitled, we shall be entitled to suspend the works until the legal situation has been clarified by the customer and the third party – without being obliged to examine the legal situation. In the event where the delay caused by such circumstances renders any continuation of the order unreasonable for us, we shall be entitled to rescind the contract.

(2) The property rights, copyrights and any industrial property rights including but not limited to any utilization and exploitation rights for the models, molds and equipment, drafts and drawings designed by us or by third parties entrusted by us, are not the property of the customer but of us. Upon request, the customer shall surrender us without delay any, documents, molds, samples or models including any and all reproductions which may have been made.

(3) § 6 and § 7 shall apply mutatis mutandis for any other defects of title.