General Terms and Conditions of Business for Delivery and Performance

1. General information
1.1 These General Terms and Conditions of Business apply exclusively to business transactions with entrepreneurs, legal persons governed by public law and separate legal entities under public law. The statutory provisions apply to business transactions with consumers.
1.2 All our deliveries and performance are subject to these General Terms and Conditions of Business without this requiring explicit reference. These General Terms and Conditions of Business apply in particular to contracts on the sale and/or delivery of moveable items (also referred to as "goods"), regardless of whether we produce the goods ourselves or purchase them from suppliers, and to contracts aimed at the manufacture of a work. Unless otherwise specified, these General Terms and Conditions of Business apply in the version applicable at the time the order is placed by the purchaser and/or in any case in the version last supplied to them in text format, as a framework agreement, also for any future contracts of the same type, without us having to make specific reference to these in each individual case.
1.3 These General Terms and Conditions of Business apply exclusively. Any deviating, conflicting, or supplementary purchaser general terms and conditions of business will only form part of the contract where we have given our express consent to them. This written consent is required in all cases, for example even if we acknowledge the purchaser's General Term and Conditions of Business and supply the goods without reservation.
1.4 Individual agreements with the purchaser (including additional agreements, supplements and amendments) shall take priority over these General Terms and Conditions of Business. The contents of such agreements shall require a written contract and/or our written confirmation in order to be valid, subject to proof to the contrary.
1.5 Legal declarations and notices that the purchaser is required to submit in relation to the contract (e.g. deadlines, notices of defects, declarations of withdrawal or reduction) shall only be effective in written or text form (e.g. letter, e-mail). Any legal provisions governing form and other proof, in particular concerning doubt over the legitimacy of the party making the declaration, shall remain unaffected.
1.6 References to the validity of legal provisions are made for clarification purposes only. Even if this sort of clarification is not provided, legal provisions apply unless directly amended or expressly excluded within these General Terms and Conditions of Business.

2. Conclusion of contracts
2.1 Our offers are always subject to change and are non-binding. This also applies if we provide the purchaser with either a physical or electronic copy of catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents, for which we hold the propriety rights and copyrights. Placement of the order by the purchaser shall be considered a binding offer.
2.2 The contract shall enter into force upon our written order confirmation or upon delivery of the goods to the purchaser as per the order, or upon the provision of the manufactured work to the customer.
2.3 In the event of change requests after the order confirmation, we are free to accept these; any additional costs shall be charged unless otherwise specified. This offer must be accepted by the purchaser no later than upon acceptance of the delivery or the work according to their change requests.

3. Prices
3.1 Prices are quoted ex delivery works, unless otherwise indicated in the order confirmation, excluding packaging and statutory VAT. Any customs duties, fees, taxes or other public duties are borne by the Purchaser.
3.2 For goods that are delivered by a carrier service (Item 4.1), the purchaser bears the transport costs from the named supply plant and the costs of any transport insurance required by the purchaser, where applicable.

4. Delivery, transfer of risk, default of acceptance, delivery times
4.1 The delivery and/or provision of the manufactured work is from the named supply plant, which is also the place of performance for the delivery and any supplementary performance. At the purchaser's request and own cost, the goods can be sent to a different destination (via a carrier). Unless otherwise agreed, we are entitled to determine the means by which the goods are shipped (in particular with regard to the carrier, route and packaging).
4.2 The risk of accidental damage to or deterioration of the goods is transferred to the purchaser at the latest when the goods are handed over. For deliveries that are sent by carrier, the risk of accidental damage to or deterioration of the goods and the risk of a delayed delivery are transferred when the goods are delivered to the logistics company, the freight forwarder or any other person or institution tasked with delivering the goods. Insofar as acceptance is agreed, this is taken as the point of transfer of risk. In other respects, the legal provisions of the German law on contracts for work and services (Werkvertragsrecht) apply to the agreed acceptance process. The same applies to the handover and acceptance process in the event that the purchaser is in default of acceptance.
4.3 Should the purchaser be in default of acceptance or fail to provide necessary cooperation, or if our delivery is delayed for other reasons for which the purchaser is responsible, we are entitled to demand compensation for the resulting damages. For this purpose, we calculate lump-sum compensation of 0.5% of the order value per week, up to a maximum of 10% of the order value, starting on the delivery date or – in the absence of a delivery date – on the date on which notification was provided that the goods were ready for dispatch. The right to evidence of higher damages and our statutory claims (in particular, to compensation for additional costs, appropriate compensation, termination) shall remain unaffected; however, this lump-sum compensation is offset against further monetary claims. The purchaser has the right to demonstrate that no damages or significantly less damages have been incurred than the aforementioned lump sum.  
4.4 Deadlines and dates to which we commit for delivery and performance are always deemed to be approximate unless a fixed deadline or date has been explicitly confirmed or agreed. A default in delivery on our part is determined in accordance with the legal provisions. However, the purchaser must issue a reminder in every case. If the delivery times are not complied with, an appropriate grace period of at least 21 working days is required before any rights can be asserted.  
4.5 We are entitled to provide part deliveries and partial services at any time unless this would unreasonably disadvantage the purchaser.
4.6 In the event of temporary delays resulting from force majeure or other events not foreseeable at the time the contract was signed and for which we are not responsible (e.g. strikes, lawful lockouts, sustained traffic disruption such as motorway closures, official measures, export restrictions or acts of war or terrorism and operational disruptions for which we are not responsible), the period for delivery and performance will be extended accordingly. If one of our suppliers fails to supply goods to us in breach of the agreement, and we are able to prove that we exercised due care when selecting the relevant supplier, the delivery period shall be extended by the length of the resulting delay in cases where it is not reasonable for us to arrange for replacement supply. Insofar as, pursuant to the delay, acceptance of the delivery cannot be reasonably expected of the purchaser, they may withdraw from the contract by sending us an immediate written declaration, without prejudice to further statutory withdrawal rights held by the purchaser.
4.7 The rights of the purchaser in accordance with Item 9 of these General Terms and Conditions of Business and our statutory rights, particularly concerning the exclusion of our obligation to provide performance (e.g. if the performance and/or supplementary performance cannot or cannot reasonably be provided), remain unaffected.

5. Performance specification, ownership and copyright to documents and auxiliary materials
5.1 The shipping weights and dimensions specified in the printed materials are as accurate as possible but should nevertheless be understood as approximate specifications, except where usability for the contractually intended purpose requires exact compliance. The specifications in the order confirmation shall be considered as definitive for determining the quality of the goods. Specifications regarding the intended use shall only be used to determine whether the goods correspond to the quality agreed in the agreement if we have confirmed the intended use in writing. In principle, we work in accordance with the standards that apply within the European Union; if standards that deviate from EU standards are to be used, the purchaser must indicate this to us prior to conclusion of the contract. Outside of the European Community, ensuring compliance with the relevant statutory requirements for product safety is the responsibility of the purchaser; any costs resulting from this, in particular for required tests or certification, are borne by the purchaser.
5.2 We retain title and copyright to all quotations and estimates that we issue as well as to drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and auxiliary materials made available to the purchaser. The purchaser must not make these items or the content thereof accessible to third parties, disclose, use or reproduce them or have them used or reproduced by third parties without our express consent. At our request, the purchaser shall return these items to us in full and destroy any copies made once they are no longer needed by the purchaser in the ordinary course of business or if negotiations do not result in the conclusion of a contract. An exception is made for storage of data made available by electronic means for data backup purposes.

6. Payment, purchase price due date
6.1 Unless otherwise specified, payment must be made in cash, by bank transfer, by giro transfer or by postal cheque transfer. Invoices are in euros and currency risks are borne by the purchaser. The purchaser is only entitled to offset or withhold payment if the counter-claims have been established as legally binding or are indisputable. In the case of any defects in the delivery and/or the work, the opposing rights of the purchaser, in particular vis-à-vis Item 8.5, sentence 2, remain unaffected. Payment by cheque or bills of exchange is excluded unless agreed separately on a case-by-base basis.  
6.2 The purchase price becomes due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, including within an ongoing business relationship, to perform a delivery in whole or in part, or provide the manufactured work, only after prepayment. We will declare reservations of this nature upon confirmation of the order at the latest. The purchaser is deemed to be in default upon expiry of the aforementioned payment term.
6.3 Interest is paid on the purchase price at the applicable statutory rate during the period of default. We reserve the right to bring additional claims for damages caused by arrears. Our right to charge merchants commercial default interest (Section 353 of the German Commercial Code [HGB]) remains unaffected.
6.4 We are entitled to withhold other deliveries and provisions, even where a date of delivery has already been confirmed, until all receivables due under the same legal relationship have been settled in full, and the purchaser is not entitled to any form of claim for damage as a result of this.
6.5 Payments count towards multiple existing receivables in the order provided for by Section 366(2) BGB (German Civil Code); purchaser repayment terms to the contrary do not apply. Any agreed discount deductions shall only be recognised if no other invoices were due for payment at the time of receipt of the payment.

7. Retention of title
7.1 The delivery items or the work remain our property until the purchaser has settled all receivables, including future receivables, resulting from the purchase agreement and/or the contract for services and the ongoing business relationship (secured claims), in particular any current account balance.
7.2 The purchaser may neither assign nor collateralise the delivery items or work prior to payment in full of the secured claims.
7.3 If the purchaser violates the terms of the contract, in particular if the purchaser fails to pay the purchase price due and/or the remuneration due, we are entitled, in accordance with the legal provisions, to withdraw from the contract and/or request for goods to be returned due to the retention of title. The request for goods to be returned does not represent our withdrawal from the contract; rather, we are entitled to request that the goods be returned while retaining the right to withdraw. Should the purchaser fail to pay the purchase price due, we must only exercise these rights if we have previously set a grace period for the purchaser to make the payment and this grace period has expired without remedy, or the setting of such a deadline is unnecessary under the terms of the legal provisions.
7.4 As part of the ordinary course of business, the purchaser is authorised, up until withdrawal from the contract in accordance with (c), to sell and/or process goods for which there is retention of title. In this case, the following supplementary provisions apply:
(a) The retention of title extends to the full value of the outcome of any processing of our goods or if these goods are combined or connected in any way. We are considered to be the manufacturer in this instance. Should our goods be processed, combined or connected to a third party's goods, where the third party's right of ownership exists, we shall apply for co-ownership in proportion with the invoice value of the reprocessed, combined or connected goods. Furthermore, the same provisions apply to these outcomes as to the goods delivered with retention of title.
(b) As collateral, the purchaser shall assign to us all receivables from third parties resulting from the further sale of goods or outcomes either in total or in proportion to our share of the co-ownership in accordance with the preceding paragraph. We hereby accept the above assignment.
(c) The purchaser remains authorised to collect the receivables in addition to us. We undertake not to collect receivables provided that the purchaser fulfils their payment obligations to us, there are no problems regarding their performance capability and we do not exercise the retention of title by asserting a right in accordance with Item 7.3. However, should any of these circumstances arise, we may demand that the purchaser informs us of the assigned receivables and their debtors, provides all the information required for the collection of receivables, provides the relevant documentation and informs the debtors (third parties) of the assignment. In this case, we are furthermore entitled to withdraw the purchaser's authorisation to further onward sales and processing of the goods under the retention of title.
7.5 If the realisable value of our collateral exceeds our receivables by more than 10%, we shall release collateral of our choice at the purchaser's request.  
7.6 The purchaser must treat the reserved goods with care. They must adequately insure them at replacement value against fire, water and theft at their own expense. To the extent that maintenance and inspection work is required, the purchaser must carry this out at their own expense in good time.
7.7 The purchaser must inform us in writing without delay if an application is filed for the opening of insolvency proceedings, or if third parties access goods belonging to us (e.g. seizures). In the event of seizures of reserved goods by third parties or other interventions by third parties, the purchaser must indicate our ownership to the third party in question. We must be notified of seizures of assigned receivables in writing without delay; in addition, the purchaser must indicate our ownership of the receivables. Unless the third party is in a position to reimburse us for legal expenses and out-of-court costs, the purchaser is liable for these costs.
7.8 If formal steps are required under the applicable law for enforcement of the above rights, such as registration of the delivery items, the purchaser undertakes to inform us of this and assist with such steps. If any individual provisions of the retention of title are invalid in accordance with applicable law, a provision that approximates the invalid provision and is permissible in accordance with applicable law will be deemed to have been agreed.

8. Warranty for defects
8.1 In the event of material defects and defects of title (including incorrect or incomplete deliveries, faulty assembly or inaccurate assembly instructions), the legal provisions apply with regard to the purchaser's rights unless otherwise agreed in the following. The special legal provisions concerning the final delivery of the unprocessed goods to a consumer remain unaffected in all cases, including where the consumer has further processed the goods (recourse of the entrepreneur in accordance with Sections 478 BGB). Claims arising from recourse of the entrepreneur in accordance with Section 445a BGB remain unaffected as well. Claims arising from recourse of the entrepreneur (irrespective of whether final delivery was made to a consumer) are excluded if the defective goods were processed by the purchaser or another entrepreneur, for example by means of installation in a different product.
8.2 Our liability for defects is above all based on the agreement concluded on the nature of the goods or the work. All product descriptions that form part of the individual contract or that we have published (in particular, in catalogues or on our website) are considered agreements on the nature of the goods or work. If no agreements were made concerning the condition of the goods, statutory regulations must be used as a basis to determine whether the goods are defective or not (Section 434(1) sentence 2 and 3 BGB and/or Section 633(2) sentence 2 and 3 BGB). However, we accept no liability for public statements issued by third parties (e.g. advertising messages).
8.3 Claims for defects on the part of the purchaser require the purchaser to have fulfilled their statutory inspection and notification obligations (Sections 377 and 381 HGB (German Commercial Code)). Should a defect become apparent during delivery, inspection or at a later time, we must be notified that this is the case in writing and without delay. In any case, obvious defects must be reported in writing within five working days of delivery or provision of the work, and defects that cannot be discovered during the inspection must be reported in writing within five working days of their discovery. The notification of defects in a part delivery does not also constitute notification regarding the entire delivery, even if the affected product was manufactured in the same production batch. Should the purchaser fail to correctly inspect the goods or provide notification of defects, our liability is excluded for defects which have not been notified, have not been notified in good time or have not been notified properly.
8.4 If the delivered item or work provided is defective, we may initially decide whether we wish to provide supplementary performance by remedying the defect (supplementary performance) or by delivering an item that is free of defects (replacement delivery), or by manufacturing a new work (replacement manufacture). Our right to refuse supplementary performance in accordance with legal requirements remains unaffected.
8.5 We are entitled to make the necessary supplementary performance dependent upon the purchaser paying the purchase price due or the remuneration due. However, the purchaser is entitled to withhold a portion of the purchase price or the remuneration in accordance with the extent of the defect.
8.6 The purchaser must give us time and occasion to provide supplementary performance and must hand over the goods or work in question for inspection purposes. In the event that a replacement delivery or replacement manufacture is provided, the purchaser must return the defective goods to us in accordance with the legal provisions.
8.7 We shall bear the expenses necessary for the purpose of providing the supplementary performance, in particular transportation, toll, labour and material costs. Should the purchaser have installed a defective item in another item or attached it to another item in accordance with its type and intended purpose, we will compensate the buyer for the costs required to remove the defective item and install or attach the rectified or replacement item; however, we must be granted the opportunity to perform such removal and installation work. Section 442(1) BGB then applies, with the proviso that, with regard to the purchaser's knowledge of defects, the installation or attachment of the defective goods by the purchaser applies in place of the conclusion of the contract. If no defect is present, we may demand compensation from the purchaser for costs resulting from the unwarranted rectification measures taken (in particular, inspection and transport costs), unless the purchaser was unable to determine that no defect was present.
8.8 Should the supplementary performance fail or a reasonable grace period for supplementary performance set by the purchaser elapse without remedy or be unnecessary under the terms of the legal provisions, the purchaser may withdraw from the purchase agreement or contract for services or reduce the purchase price or remuneration. However, this right to withdraw does not exist in the case of an insignificant defect.
8.9 The purchaser's claims to compensation or reimbursement of wasted expenses may only be brought, even in the case of defects, in accordance with Clause 9, and are otherwise excluded.

9. Other liability
9.1 Unless otherwise regulated by these General Terms and Conditions of Business, including the following provisions, we are liable for infringement of contractual and non-contractual obligations in accordance with the legal provisions.
9.2 We are liable for compensation – regardless of the legal grounds – in the context of fault-based liability in the case of intent and gross negligence. In the case of minor negligence, we are liable, subject to a smaller scope of liability, in accordance with the legal provisions (e.g. diligence in our own affairs) solely
a) for damages resulting from injury to life, limb or health,
b) for damages resulting from a significant breach of an essential contractual obligation (an obligation, the fulfilment of which enables the proper execution of the contract and on which the contractual parties can routinely rely); in this case, our liability is nevertheless limited to compensation for damages that are foreseeable and typical.
9.3 The limitations of liability arising from Clause 9.2 also apply in the event of breaches of obligations by or for the benefit of individuals for whose culpability we are responsible under law. They do not apply to the extent that we maliciously conceal a defect or have provided a guarantee for the nature of the goods or the work, or for purchaser claims under the German Product Liability Act.
9.4 In the event of a breach of a contractual obligation that is not related to a defect, the purchaser may only withdraw from or terminate the contract if we are responsible for the breach. A free right of termination on the part of the purchaser is excluded. The legal requirements and consequences apply in all other respects.

10. Contract for services
10.1 If the creation of software developed according to customer requirements or the customized adaptation of the software acquired by the contractor is contractually agreed, the following conditions under this item apply in addition and take precedence.
10.2 The customer undertakes to perform acceptance after completion and initial commissioning of the software provided this is essentially functional and free of defects. Acceptance shall be in written or text form.
10.3 If, at the customer's request, we make any changes to the software which relate to services which have already been approved or accepted, additional expenses subject to a charge shall be incurred. The customer's change requests accepted by us and the impacts associated with these are recorded by us in an offer and transmitted to the customer for assignment. Any assignment deviating from the offer shall be deemed a new offer on the part of the customer. The offer and assignment shall be effective only if made in written or text form.
10.4 The customer and their staff undertake to provide us truthfully with the information required to perform services and to make available to us and our staff all the necessary information and documents.

11. Limitation period
11.1 Notwithstanding Section 438(1) no. 3 BGB and Section 634a(1) no. 1, 3 BGB, the limitation period for claims for defects, with the exception of claims for damage, is twelve months after delivery or acceptance in accordance with Item 10.2. Insofar as acceptance is agreed, this limitation period starts upon acceptance. Claims for damage are regulated by Clause 11.3.
11.2 However, if the goods involve a building or a thing that is typically used in a building and caused a defect in the building (building material), statutory regulations state that the limitation period is five years from delivery (Section 438(1) no. 2 BGB) or acceptance (Section 634a(1) no. 2 BGB). Further special legal provisions on limitation periods (in particular Sections 438(1) no. 1, 444 and 445b BGB) remain unaffected.
11.3 The statutory limitation periods under commercial law or the German law on contracts for work and services (Werkvertragsrecht) also apply to contractual and non-contractual purchaser claims for damage relating to defective goods, unless the application of the ordinary legal limitation period would lead to a shorter limitation period in the case in question. However, the limitation period for purchaser claims for damage in accordance with Item 9.2 sentence 1 and 2 a) and in accordance with the German Product Liability Act is exclusively in accordance with the statutory limitation periods.

12. Place of jurisdiction, applicable law
12.1 The exclusive place of jurisdiction – including internationally – for disputes arising from or in connection with a contract based on these General Terms and Conditions of Business is the location of our place of business, to the extent that the contractual partners are merchants as defined by the German Commercial Code, legal persons under public law or special funds under public law. The same applies if the purchaser is an entrepreneur in the meaning of Section 14 BGB. However, we are also entitled in all cases to file a suit at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Business or an overriding individual agreement, or at the general place of jurisdiction of the Purchaser. Overriding legal provisions, in particular concerning exclusive jurisdictions, remain unaffected.
12.2 With regard to these General Terms and Conditions of Business and the contractual relationship between us and the Purchaser, the law of the Federal Republic of Germany applies to the exclusion of international uniform law and the UN Convention on Contracts for the International Sale of Goods in particular.

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