Conditions générales

General Terms and Conditions of Sales and Supply

1. General Terms, Scope

(1) These General Terms and Conditions of Sale and Supply ("AVLB") apply for all business relationshipswhere we are the contractor/vendor ("Contractor") and ourcustomers are the client ("Client"). TheseAVLB shall only apply if the Client is an entrepreneur (article 14 of the German Civil Code [BGB]), a legalentity under public law or a public law Special Fund.

(2) The AVLB apply particularly to contracts regarding the sale and/or supply of moveable items (also referredto as "Goods"), regardless of whether the Contractor produces the goods himself or whether hepurchases them from suppliers (articles 433 and 651 of the BGB) and regardless of whether assemblyservicesare included in the agreement.The AVLB shall applyas amended and shall provide a frameworkagreement for all future contracts regarding the sale and/or supply of moveable items with the sameClient, without the Contractor having to refer to the AVLB in each individual agreement.The Contractorshall inform the Client without delay of any amendments to his AVLB.

(3) Only the Contractor's AVLB shall apply. Any deviating, conflicting, or supplementary provisions in theClient's General Terms and Conditions shall onlyform part ofthe contract if the Contractor has given theirexpress consent in writing. Written consent is required in all cases, for example even if the Contractoracknowledges the Client's General Term and Conditions and supplies the goods without reservation.

(4) Any individual agreements completed with the Client (including supplementary agreements, amendmentsand revisions) shall always prevail over these AVLB.The content of these agreements must takethe form of a written contract or written confirmation.

(5) Legal declarations and notices that the Client is required to submit to the Contractor following the completionof the agreement (e.g. deadlines, notices of defects, declarations of withdrawal or reduction)shall only be effective in written form.

(6) References to the validity of legal provisions are made for clarification purposes only. Even if clarificationis not provided, legal provisions shall apply unless directly amended or expressly excluded in theseAVLB.

 

2. Contract Completion

(1) The Contractor's offers are subject to change and non-binding. This also applies if the Contractor providesthe Client with either a physical or electronic copy of catalogues, technical documentation (e.g.sketches, plans, calculations, references to DIN Standards), other product descriptions or documents,for which the Contractor holds the propriety rights and copyrights.

(2) The Client's order constitutes a binding contractual offer. Unless otherwise agreed in the order, theContractor is entitled to accept this contractual order within four weeks following receipt of the offer.

(3) The Contractor's acceptance of the order can either be provided in writing (e.g. an order confirmation)or by delivering the goods to the Client.

 

3. Delivery Deadline and Delivery Delays

(1) Delivery deadlines are agreed on an individual basis or are specified by the Contractor when acceptingthe order. If a deadline has not been specified, the goods must be delivered approximately four weeksfollowing completion of the contract.

(2) In the event that the Contractor is unable to adhere to the binding delivery deadline for reasons thatcannot be attributed to the Contractor (delivery not available), the Contractor shall inform the Clientwithout delay and at the Same time, provide the new expected delivery date. If the delivery is then notavailable by the new delivery deadline, the Contractor is entitled to withdraw either fully or partiallyfrom the contract. In this case, the Contractor shallreimburse any payments already received fromthe Client without delay. Here, the unavailability of the delivery applies particularly if the Contractor'ssupplier does not provide the delivery on time when the Contractor has concluded a matching Covertransaction, if neither the Contractor or his supplier is responsible for the delay, or if the Contractor isnot obliged to procure goods for the individual case.

(3) A delayed delivery is defined by the legal specifications. However, if the delivery is delayed, the Clientmust issue the Contractor with a reminder.

 

(4) The Client's rights in accordance with Clause 8 of these AVLB and the Contractor's legal rights, particularlyconcerning the exclusion of liability (e.g. if the Service and/or subsequent supply cannot or cannotreasonably be performed), shall remain unaffected.

 

4. Delivery, Transfer of Risks, Receipt, Delayed Acceptance

(1) The delivery is ex warehouse, which is also the place of performance. At the Client's request and owncost, the goods can be sent to a different destination. Unlessotherwise agreed, the Contractor is entitledto determine the method of transportation (in particular the carrier, route and packaging).

(2) The risk of breakage or damage to the goods is transferred to the Client at the latest when the goodsare handed over. For deliveries that are sent by carrier, the riskof breakage or damage to the goods andthe riskofa delayed delivery are transferred when the goods aredelivered to the logistics company, thefreight forwarder or any other Person or institution tasked with delivering the goods. If the parties haveagreed to perform an acceptance process, this is used as thepoint of transfer. In other respects, the legalprovisions of the German law on contracts for workand Services (Werkvertragsrecht) shall apply for theagreed acceptance process. However, the provisions of articles 377 and 381 of the German CommercialCode (HGB) shaII remain unaffected.The goods are considered delivered and accepted even if the Clientdelays the acceptance process.

(3) If the Client delays the acceptance process or fails to cooperate accordingly, or if the delivery is delayedfor other reasons for which the Client is responsible, the Contractor is entitled to demand compensationfor the resulting damages, including for additional expenditure such as Storage costs. The Contractorcalculates a fixed payment for each week in the amount of 0.5% of the net delivery value, up to a maximumof 5%, starting from the delivery deadline or, if no deadline was agreed, starting from the date ofnotification that the goods were ready to be dispatched.Evidence of increased damage and the Contractor's legal entitlements (in particular with regard toreimbursement of additional expenditure, suitable compensation, termination) remain unaffected.However, the flat rate will continue to be charged on top of any further monetary claims. The Client isentitled to provide evidence that no damage is incurred by the Contractor or that the level of damageis significantly lower than the flat rate charged by the Contractor.

 

5. Prices and Terms of Payment

(1) Provided that noother provisions have been agreed on an individual basis, the Contractor'sexwarehouseprices at the time when the contract was completed shall apply plus the applicable value-added tax.

(2) For goods that are delivered by a carrier Service (Clause 4 Paragraph I), the Client bears the costs fortransportation ex warehouse and the costs for any transport insurance requested by the Client. If theContractor does not invoice the Client for the transport costsaccrued for each individual case, a transportflat rate fee (excluding insurance) shall apply using a sliding scale depending on weight and distance.Any custom duties, fees, taxes or other public duties are borne by the Client. The Contractor does nottake back transport packaging or any other type of packaging in accordance with the German PackagingOrdinance; this packaging, not including pallets, is the property of the Client.

(3) Provided that noother provisions have been agreed on an individual basis, Payment is due and must be completed within 10days of the invoice being issued and the goods beingdelivered and accepted.

(4) The Client falls into arrears once the payment deadline has passed. While the payment is overdue, theamount is subject to interest at the legal interest rate for arrears. The Contractor has the right to claimfurther losses arisingfrom the delayed payment.The Contractor's claim to due date interest (article 353of the HGB) vis-a-vis entrepreneurs remains unaffected.

(5) The Client only has the right to retain or the right to set-off to the extent that his claims are legallybinding and undisputed. If there are any defects in the delivery, the Client's counter claims shall remainunaffected, in particular in accordance with Clause 7 Paragraph 6 Sentence 2 of these AVLB.

(6) If it becomes apparent after completion of the contract, that the Contractor's claim to remunerationmay be put at risk by the Client's inability to pay (e.g. a request to open insolvency proceedings), theContractor is entitled to refuse delivery in accordance with the relevant legal regulations and withdrawfrom the contract (article 321 of the BGB), after setting a deadline if necessary. For agreements regardingthe production of non-fungible items (items produced tospec.), the legal regulations regarding thedispensability of a deadline remain unaffected.

 

6. Reservation of Title

(1) Until all current and future liabilities from the sales contract and current business relationship (securedclaims) have been paid in full, the Contractor holds the ownership rights to the goods sold.

(2) The goods to which the ownership titles are reserved must not be pledged to third parties or assigned assecurity until the claims have been paid in full.The Client must inform the Contractor in writing withoutdelay if access to goods belonging to the Contractor has been granted to third parties and also describethe extent of this access.

(3) If the Client violates the terms of the contract, in particular ifthe Client fails to pay the amounts due, theContractor is entitled in accordance with legal regulations towithdrawfrom the contract and/or requestforgoods to be returned due to the reservation of title. The request for goods to be returned does notrepresent the Contractor's withdrawal from the contract; rather, the Contractor is entitled to requestthat the goods be returned while retaining the right to withdraw. If the Client fails to pay the amountdue, the Contractor is only permitted to exercise these rightsif the Contractor has already unsuccessfullyset the Client a suitable deadline for payment or if the requirement to set a deadline is not necessary inaccordance with the relevant legal regulations.

(4) As Part of the ordinary Course of business, the Client is authorised to sell and/or treat goods for which the titles are reserved. In this event, the following supplementary provisions shall apply.

(a)The reservation of title shall extend to the full value of the outcome of any reprocessing of thecontractor'sgoods or if these goods are combined or connected in any way.The Contractor is considered as themanufacturer. Should the Contractor's goods be processed, combined or connected to a third party'sgoods, where the third party also reverses the right to title, the Contractor shall apply for co-ownershipin proportion with the invoice value of the reprocessed, combined or connected goods. Furthermore,the Same provisions shall apply to these outcomes as to the goods delivered with reservation to title.

(b)As collateral, the Contractor shall assign to the Client all liabilities from third parties resulting from thefurther sale of goods or outcomes either in total or in proportion with his share of the co-ownership inaccordance with sales. The Client accepts the assigned liabilities. The Client's obligations listed underParagraph 2 shall continue to apply for assigned liabilities.

(c)The Contractor and Client are authorised to recover liabilities. TheContractor undertakes not to recoverliabilities provided that the Client fulfils his payment obligations to the Contractor, does not fall into arrearsfor his payments, has no request for opening insolvency proceedings submitted against him, andthere are no further problems regarding his ability to pay. However, should any of these circumstancesarise, the Contractor can request the Client to inform him of the assigned liabilities and their debtors,provide him with the data required to recover the liabilities, provide him with alt relevant documentation,and inform the debtors (third parties) of the assignment.

(d)If the realisable value of collateral exceeds the Client's liabilities by more than 10%, the Client shall releasecollateral of his choice at the request of the Contractor.

 

7. Client's Defect Claims

(1) In the event of material defects and defects of title (including incorrect or incomplete deliveries, faultyassembly, or inaccurate assembly instructions),legal regulations shall apply with regard to the Client'srights unless otherwiseagreed in thefollowing.The Special legal provisions concerning the final deliveryof goods to the consumer shall remain unaffected in all cases (recourse claims as per articles 478 and479 of the BGB).

(2) Any agreements made concerning the condition of the goods shall provide the basis for liability fordefects. Agreements concerning the condition of the goods are any product descriptions that are theobject of an individual contract, irrespective of whether the product description was drawn up by theClient, the manufacturer or the Contractor.

(3) If no agreements were made concerning the condition of the goods, legal regulations must be used asa basis to determine whether the goods are defective or not (article (1) sentences 2 and 3 of the BGB).The Contractor shall not be held liable for any public declarations made by the manufacturer or anyother third parties (e.g. information in adverts).

(4) Any claims made by the Client regarding defects are subject to his fulfilment of legal inspection andnotification duties (articles 377and 381 of the HGB). If a defect is detected during or after the inspection,the Client must notify the Contractor inwriting without delay.The notification is deemed to have beensent without delay if it is sent within five days, whereby notification can be dispatched on the fifth dayand still be valid. Independent to these inspection and notification duties, the Client must send writtennotification of anyvisible defects (including any incorrect or incomplete deliveries) within two weeks ofdelivery, whereby notification can be dispatched on the fourteenth day and still be valid. If the partieshave agreed to performan acceptance process, the time of acceptance shall apply within the meaningof article 377 (1) of the HGB.

 

Should the Client fail to correctly inspect the goods or provide notificationof defects, the Contractor's liability shall be excluded for defects of which it has not been notified.

(5) In the event that the delivered goods are damaged, the Contractor can initially decide whether he shallrectify the issue by repairing the defect (rework) or by delivering a fault-free item (replacement delivery).His right to refuse rectification in accordance with legal requirements remains unaffected.

(6) The Contractor is entitled to make the rectification contingent upon theClient's payment of theamountdue. However, the Client is entitled to withhold a portion of the purchase price in accordance with theextent of the defect.

(7) The Client must give the Contractor time and occasion to perform the rectification workand must handover the goods in question for inspection. In the event that the Contractor provides a replacementdelivery, the Client must return the defective goods to the Contractor in accordance with legal regulations.If the Contractor was not originally contracted to install the goods, any rectification work shallnot include the dismantlingof the defective goods or the installation of the new goods.

(8) The costs required to inspect the goods and carry out rectification work, in particular the costs fortransport, handling, labour and materials (but not dismantling and installation costs),are borne by theContractor in the event of an actual defect. However, if the Client's request to rectify a defect proves tobe unjustified, the Contractor can askfor the resulting costs to be reimbursed by the Client.

(9) In urgent cases, for example safety risks or to prevent further extensive damage, the Client is authorized to rectify the defect himself and ask the Contractor to reimburse any objectively necessary costs. TheClient must inform the Contractor without delay, or beforehand if possible, if he rectifies any such defects.The Client does not have the right to rectify defects himself if the Contractor is entitled to refusethe right to rectification work in accordance with legal regulations.

(10) If the rectification work is not successful or if the deadline for the rectification work set by the Clientpasses without success or is superfluous according to legal regulations, the Client can withdraw fromthe sales contract or reduce payment. However, the right to withdraw shall not apply if the defect cannotbe rectified.

(11) The Client's claims to damages or the reimbursement of wasted costs shall only exist to the extent ofthe provisions in Clause 8 and are otherwise excluded.

 

8. Further Liability

(1) Unless otherwise specified in these AVLB and the following provisions, the Contractor is liable for anyviolation of contractual and non-contractual obligations in accordance with the relevant legal specifications.

(2) The Contractor is liable for damages in cases of intent and gross negligence, irrespective of the legalbasis. In cases of ordinary negligence, the Contractor is only liable for(a)Damages resulting from injury to life, limb or health,(b)Damages resulting from the breach of an essential contractual obligation (an obligation which enablesthe proper execution of the contract and on the adherence to which the contractingparties may regularlyrely) provided that this breach puts the purpose of the contract at risk; however, in this case theContractor's liability is limited to foreseeable and typical damages.Liability for the breach of minor contractual obligations resulting from slight negligence is otherwiseexcluded.

(3) The limitations to liability under Paragraph 2 shall not apply if thecontractor has deliberately concealeda defect or has provided a guaranteefor the condition of the goods.The same shall apply to the Client'sclaims under the Product Liability Act.

(4) In the event of a breach of a contractual obligation that is not related to a defect, the Client can onlywithdraw from or terminate the contract if the Contractor was responsiblefor this breach.The Client doesnot have the right to terminate the contract early (as per articles 651 and 649 of the BGB in particular).Furthermore, the legal requirements and consequences shall apply.

 

9. Limitation Period

(1) Notwithstanding article438 (1) number 3 of the BGB, the general limitation period for claims of materialdefects or defects of title is one year from delivery. If the parties have agreed to perform an acceptanceprocess, the period shall begin upon acceptance.(2) However, if the good is a building or a thing that is typically used in a building and caused a defect inthe building (building material), legal regulations state that the limitation period is five years from delivery(article438 (1) number 2 of the BGB). Any Special legal regulations regarding third party's rights todemand surrender (article 438 (1) number 1 of the BGB), thefraudulent concealment ofdefects by thevendor (article 438 (3) of the BGB) and recourse claims from the final delivery to the consumer (article479 of the BGB) shall remain unaffected.

(3) The limitation periods under sales law mentioned above shall also apply for the Client's contractual andnon-contractual claims for damages related to defective goods if the application of the ordinary legallimitation period (articles 195 and 199 of the BGB) leads to a shorter limitation period for the individualcase.The limitation periods of the German Product Liability Act shall remain unaffected in all cases. Otherwise,only the legal limitation periods shall apply to the Client's claims for damages as per Clause 8.

 

10. Choice of Law and Place of Jurisdiction

(1) With regard to these AVLB and all legal relationships between the Contractor and the Client, the law ofthe Federal Republic of Germany shall apply to the exclusion of international uniform law, in particularthe UN Sales Convention. Requirements and consequences of reservation of title as per Clause 6 aresubject to the law of the location where the goods are stored if the application of German law is notpermitted or void under the chosen law.

(2) If the Client is an entrepreneur within the meaning of the German Commercial Code(HGB),a legal entityunder public law or a public law Special Fund, the place ofjurisdiction for all disputes arising directly orindirectly from the contractual relationship -even for international cases -shall be chosen by the Contractoras the Contractor's headquarter in Stuttgart, Germany.However, the Contractor is also entitled to file proceedings at the Client's general place of jurisdiction.

 

11. Severability Clause

Should a provision ofthese General Terms and Conditions ofSaleand Supplyora provision in thecontextof other agreements be or become invalid, this shall not affect the validity of any other provisions or agreements.