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General delivery Conditions of elobau GmbH & Co. KG

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General delivery Conditions of elobau GmbH & Co. KG

1.

Area of Application, Form

1.1 These General Terms and Conditions of Delivery (TC) shall apply to all our deliveries, services and offers on an exclusive basis. They shall be integral parts of all our contracts we enter into with our contract partners (hereinafter also referred to as “Customer”) on our or the Customer’s offers, deliveries and services. They shall also apply to all future deliveries, services or offers to the Customer, although they may not be agreed upon separately again.
1.2 These Terms and Conditions shall only apply if the Customer is an entrepreneur (sec. 14 BGB / German Civil Code), a legal entity under public law or a special fund under public law.
1.3 These General Terms and Conditions of Delivery shall apply to all contractual relations between us and the Customer on an exclusive basis. Deviating, contradictory or supplementing general terms and conditions of business of the Customer shall only become an integral part of the contract when and to the extent in which we give our express consent to their applicability. This requirement of consent shall apply in any case, also and particularly if we perform the delivery to the Customer without reservation being aware of the Customer’s TC.
1.4 Individual agreements made with the Customer in a specific case (including collateral agreements, amendments and modifications) shall have priority over these TC in any case. Subject to rebuttal, a written contract or our written confirmation, respectively, shall be authoritative for the contents of such agreements.
1.5 Declarations with legal relevance and notices by the Customer concerning the contract (e.g. setting of due dates, notices of defect, declarations of withdrawal or price reduction) shall be provided in written form or in text form (e.g. letter, email, facsimile). Legal formal provisions and other evidence, particularly in case of doubt about the legitimation of the declaring party, shall remain applicable.
1.6 Any reference to the applicability of legal regulations is of a clarifying nature only. The legal regulations shall apply even without such clarification, unless modified or expressly excluded in these TC.
2.

Offer and Formation of Contract

II. 1 Our offers are subject to alteration and non-binding, unless expressly identified as binding or containing a specific date of acceptance. This shall also apply if we provided the Customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN norms), other product descriptions or documentation – also in electronic form – to which we reserve our entire property rights and copyrights.
2.2 The Customer’s purchase order is considered a binding contract offer. Unless resulting otherwise from the purchase order, we have the right to accept such contract offer in written form or in text form (e.g. by way of confirmation of order) within 14 days of its receipt.
3.

Term of Delivery, Delay of Delivery, Partial Deliveries

3.1 Any terms of delivery shall be agreed upon individually or specified by us in the acceptance of the purchase order.
3.2 Terms and dates of deliveries and services we held out in prospect shall always be deemed approximate, unless a fixed term or a fixed date has been expressly accepted or agreed.
3.3 If we are unable to meet binding terms of delivery for reasons we are not responsible for (including, without limitation, non-availability of the service, business disruptions of any type through no fault of our own, delays in transit, strikes, lawful lockout, shortage of labour, energy or raw materials through no fault of our own, difficulties in obtaining required official approvals through no fault of our own, governmental action), we will inform the Customer thereof without delay and concurrently indicate the prospective new term of delivery. If the service should not be available even within the new term of delivery for reasons we are not responsible for, we have the right to withdraw from the contract wholly or partially. We will immediately reimburse any consideration already provided by the Customer. A case of non-availability of the service in this sense shall be particularly late deliveries to us by our supplier, cases in which we entered into a congruent covering transaction or in which neither we are nor our supplier is at fault or in which we are not obliged to procure in the specific case.
3.4 The occurrence of the delay of delivery shall be determined according to the statutory regulations. However, a reminder notice by the Customer is always required. In case that our delivery should be delayed, the Customer may claim compensation on a liquidated damages basis for the delay. The liquidated damages lump sum shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, however not to exceed 5% of the delivery value of the goods delivered late. We reserve the right to provide evidence that the Customer did not suffer any damage or, if so, the damage was substantially lower than the mentioned lump sum.
3.5 The rights of the Customer pursuant to Sec. 8 of these TC and our statutory rights, particularly in case of exclusion of the duty to perform (e.g. due to impossibility or unreasonableness of the performance and/or subsequent performance) shall remain in force.
3.6 We are entitled to provide partial deliveries only if the Customer can use the partial delivery within the framework of the contractual purpose of use, the delivery of the residual ordered goods is ensured, and the Customer does not incur any substantial additional expense or additional costs (unless we declare our willingness to bear such costs).
4.

Delivery, Passing of the Risk, Acceptance, Default of Acceptance

4.1 Delivery shall be ex works. Place of fulfilment for the delivery shall be Leutkirch im Allgäu (Germany), unless provided otherwise. On the Customer’s request, the goods will be shipped to another destination.
4.2 The risk of accidental loss and accidental deterioration of the contractual objects shall pass to the Customer no later than upon the delivery of the object of delivery to the carrier, forwarder or any other third party instructed to carry out the shipment (the beginning of the loading process being decisive). This shall also apply if partial deliveries are made or if we committed ourselves to provide other services too (e.g. shipment or installation). If the shipment or the delivery is delayed due to a circumstance the cause of which is to be attributed to the Customer, the risk shall pass to the Customer as of the day on which the object of delivery is ready for shipment and we notified the Customer thereof.
4.3 If the Customer is in default of acceptance or omits any cooperating duty or if our delivery is delayed for other reasons imputable to the Customer, then we have the right to claim compensation of the resulting damage, including the additional expense we incur (such as warehousing costs). To cover such expense, we will invoice a lump-sum compensation of 1 % of the order amount, with a minimum of EUR 20.00 per day starting as of the beginning of the agreed period of delivery or, in the absence of such period of delivery, as of the notice of readiness for shipment of the goods. The proof of any higher damage and our statutory claims (particularly the compensation of additional expense, reasonable reimbursement, termination) shall remain reserved. The lump sum, however, shall be set off against additional financial claims. The purchaser is free to furnish proof of a lower damage or that we have not suffered any damage at all.
5.

Prices and Terms of Payment, Set-off

5.1 Unless agreed otherwise in a specific case, our prices applicable on the date of formation of a contract shall be ex works plus statutory value added tax as applicable from time to time.
5.2 In case of shipment of the contractual object, the Customer shall bear the shipment costs from our warehouse and the costs of a transport insurance the Customer may require, as the case may be. The Customer shall bear customs duties, charges, taxes and other public dues, if any.
5.3 The purchase price shall be due and payable within 30 days as of the invoicing and the delivery of the goods. We have the right – also in the course of a current business relationship – to carry out a complete or partial delivery only on advance payment at any time. We will declare such a reservation in the confirmation of order, at the latest.
5.4 The Customer shall be in default as of the lapse of the term of payment set out above. While the default continues, the purchase price shall bear interest at the statutory default rate. We reserve the right to claim additional default damages, if applicable. In case of merchants (“Kaufleute” as defined in the German Commercial Code/HGB), our claim for the commercial post-due date interest (sec. 353 HGB) shall continue to apply.
5.5 The Customer is entitled to rights of retention or withholding only to the extent in which its claim is undisputed or has been awarded to the Customer by a competent court without further recourse. In case of defects of the delivery, the Customer’s reciprocal rights shall continue to apply.
5.6 If after the formation of the contract it is found that our claim for satisfaction of the purchase price is at risk (e.g. following an application for the initiation of insolvency proceedings against the assets of the Customer) due to the deficient performance capacity of the Customer, we are entitled by law to deny performance and – upon setting a deadline, if applicable – to withdraw from the contract (sec. 321 BGB). In case of contracts on the manufacture and delivery of fungible things (custom-made item), we may declare the withdrawal with immediate effect. The statutory regulations on the dispensability of due-date setting shall continue to apply.
6.

Reservation of Title

6.1 We reserve our title to the contractual services and deliveries until the full payment of all our current and future claims under the contract and the current business relationship to the Customer (secured claims).
6.2 The goods under reservation of title must neither be pledged nor provided as security to third parties before the full payment of the secured claims. The Customer shall inform us immediately if an application for initiation of insolvency proceedings against its assets were to be filed or if third parties gain access (e.g. seizure) to the goods we own.
6.3 If the Customer should act in breach of contract, particularly in case of non-payment of a due purchase price, we have the right to withdraw from the contract as provided by law or/and to claim the surrender of the goods based on the reservation of title. The surrender request does not concurrently include the declaration of withdrawal from the contract. We rather have the right to claim the surrender of the goods only and reserve our right to withdraw. If the Customer fails to pay the due purchase price, we may exercise such rights only if our previously set reasonable period for the Customer to pay proves abortive or if such a period is dispensable by law.
6.4 Until our declaration of revocation, if any, the Customer is authorised to resell and/or process the goods subject to reservation of title in the ordinary course of business. In such a case, the following provisions shall apply additionally:The reservation of title includes products created by processing, combination or incorporation of our goods at their full value, while we are regarded as manufacturers. If in case of processing, combination or incorporation with goods of third parties the title of the latter should remain in effect, then we acquire the co-ownership in the proportion of the invoice values of the processed, combined or incorporated goods. In any other respect, the provisions applicable to the goods delivered subject to reservation of title shall apply to the created product mutatis mutandis.The Customer hereby assigns to us as security the claims against third parties arising from any resale of the goods or the products in their entirety or in the amount of our co-ownership share pursuant to the preceding paragraph, if any. We accept the assignment.The Customer remains authorised to collect claims as we are. We agree not to collect claims for as long as the Customer meets its payment obligations to us, there is no deficiency of its performance capacity, and we do not make use of the reservation of title by exercising any right pursuant to section 6.3 above. If any of this should be the case, however, we may request the Customer to disclose the assigned claims and the respective debtors to us, provide all the information required for collection, deliver all the relevant documents, and notify and disclose the assignment to the debtors (third parties). Moreover, in such a case we have the right to withdraw the authorisation of the Customer to resell and process the objects of delivery subject to reservation of title.If the realisable value of the security established for our benefit should exceed our claims by more than 10%, we will release security of our choice on the Customer’s request.
7.

Warranty, Material Defects

7.1 The warranty period is one year as of the passing of the risk. This period does not apply to damage claims of the Customer for injuries with lethal consequences or resulting in physical disability or damage to health or for negligent or grossly negligent breaches of duty by the Customer or its agents with vicarious liability or for claims under the German Product Liability Act (Produkthaftungsgesetz), which become time-barred according to the legal regulations.
7.2 The contractual objects shall be examined carefully immediately after the delivery to the Customer or any third party appointed by the Customer (sec. 377 HGB). They shall be deemed approved by Customer as to obvious defects or other defects that would have been detectable in case of an immediate, careful examination, unless we receive a notice of defects in written form or in text form within 7 working days of the delivery. As to other defects, delivered contractual objects shall be deemed approved by the Customer if we do not receive the notice of defects in written form or in text form within 7 working days of the date on which the defect became manifest. If the defect was obvious during normal use already on an earlier date, however, such earlier date shall be decisive for the commencement of the period. On our request, any rejected object of delivery shall be returned to us carriage paid. In case of a justified notice of defects, we will reimburse the costs of the most favourable shipment method. This shall not apply if costs increase due to the fact that the object of delivery is located at another place than the place of the designated use.
7.3 In case of material defects of the delivered contractual objects, we shall be obliged and entitled to provide either subsequent improvement or replacement delivery, the respective option to be chosen within a reasonable period. Our right to deny subsequent performance subject to the legal requirements shall continue to apply. The Customer shall deliver the rejected contractual objects to us for inspection purposes. In the event of replacement delivery, the Customer shall return to us the defective contractual object in accordance with the statutory regulations.
7.4 The subsequent performance includes neither the disassembly of the defective contractual object nor the re-assembly if we have not been initially obliged to provide the assembly. We will bear or reimburse the expense required for the inspection and subsequent performance, including, but not limited to costs for shipment, travelling, labour and materials, as well as the costs for disassembly and assembly in accordance with the statutory regulations if a defect actually exists. The Customer shall reimburse us for the costs we incurred due to an unjustified request to remove defects (including, but not limited to inspection and shipment costs), unless the Customer could not recognise that there was no defect.
7.5 In cases of urgency, e.g. in case of danger to operational safety or to prevent any disproportionate damage, the Customer has the right to remove the damage by itself and request us to reimburse the expense objectively required in this respect. Such self-help shall be coordinated with us. The right to self-help shall not apply if we were to have the right to deny a corresponding subsequent performance.
7.6 If subsequent performance proves abortive or if a reasonable period to be set by the Customer for subsequent performance should lapse without success or be dispensable by law, the Customer may withdraw from the contract or reduce the contractually agree price. In case of an insignificant damage, there is no right of withdrawal.
7.7 Moreover, the Customer may claim damages pursuant to the terms and conditions set forth in section 8.
8.

Damage Claims of the Customer

8.1 We shall not be liable in case of simple negligence and the simple negligence of our corporate bodies, legal representatives, employees and other agents with vicarious liability, provided that the act of breach does not affect material contractual duties. Accordingly, we are liable in case of intent and gross negligence as part of fault-based liability. In case of simple negligence, we are liable subject to a less severe liability standard pursuant to the statutory regulations (e.g. for the due care in own affairs) only for damages resulting from injuries with lethal consequences or resulting in physical disability or damage to health and for damages resulting from any more than insignificant breach of a material contractual duty (duty the fulfilment of which makes the proper implementation of the contract possible in the first place and in the fulfilment of which the contract partner relies or may rely on a consistent basis). In the latter case, however, our liability is limited to the compensation for the foreseeable, typically occurring damage. Moreover, the limitation of liability shall not apply if we concealed a defect fraudulently or have taken over a guarantee for the quality of the delivered contractual objects, as well as to claims of the Customer pursuant to the provisions of the German Product Liability Act.
8.2 The Customer may withdraw or terminate for a breach of duty not consisting in a defect only if we are responsible for the breach of duty. A right to terminate freely (particularly pursuant to the provisions of sec. 650, sec. 648 BGB) shall be excluded. In any other respect, the statutory requirements and legal consequences shall apply.
9.

Choice of Law and Venue of Court

9.1 Any contractual and non-contractual relationship between us and the Customer shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of international uniform law, particularly the UN Sales Law.
9.2 Venue of court for all disputes under the contractual relationship shall be Leutkirch im Allgäu, Germany. Mandatory statutory regulations on exclusive venues of court shall continue to apply.
9.3 If and to the extent in which there should be any omission in the contractual provisions applicable between us and the Customer or in these General Terms and Conditions of Delivery, those legally effective provisions shall be deemed agreed to fill such omission, which the parties would have agreed upon based on the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery had they been aware of the omission.

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