§ 1 General Information, Scope of Application

(2)    The GCSD shall only apply if the Buyer is a professional trader (§ 14 German Civil Code (BGB)), a businessman (§§ 1-6 German Com- mercial Code (HGB)), a legal entity under pub- lic law or a special fund under public law.

(3)    The GCSD apply in particular to contracts for the sale and/or delivery of movable goods („goods“), irrespective of whether we manu- facture the goods ourselves or purchase them from suppliers. Unless otherwise agreed by way of a corresponding textual note when the contract is concluded, these GCSD in the ver- sion valid at the time of the Buyer’s order shall also apply as a framework agreement for simi- lar future contracts.

(4)    Our GCTS shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s general terms and conditions.

(5)      Individual agreements made with the Buyer (including ancillary agreements, additions and amendments) shall in any case take precedence over these GCSD. Subject to proof to the con- trary, a written contract or our written confir- mation shall be authoritative for the content of such agreements. The GCSD shall apply in addition to individual agreements between the parties.

(6)    Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notifi- cations of defects, declaration of withdrawal or reduction) must be made in writing to be effective.

(7)  References to the applicability of statutory pro- visions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GCSD.

(1)    The Seller’s digital and analogue product cata- logues do not constitute a binding offer (invita- tion ad offerendum).

(2)    The order of the goods by the Buyer shall be deemed a binding contractual offer. Unless otherwise stated in the order, we shall be enti- tled to accept this contractual offer within 10 working days after its receipt by us.

(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.

§ 3 Delivery Period and Delay in Delivery

(1)    The delivery period shall be agreed individu- ally or stated by us upon acceptance of the or- der.

(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery deadline, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, a reminder by the Buyer is required. If we are in default of delivery, the Buyer may demand a lump-sum compensation for the damage caused by the default. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay, but not more than a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has not suffered any damage or that the damage is significantly lower than the abovementioned lump sum.

(4) The rights of the Buyer pursuant to § 8 of these GCSD and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance Default of Acceptance

(1)    For domestic customers (from Germany), each delivery shall be made ex warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the request, risk and expense of the Buyer, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, the Company shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) itself.

(2)    Unless otherwise agreed in textform upon conclusion of the contract, the following shall apply: The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer as soon as the goods are delivered to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services (Werkvertragsrecht) shall apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, fails to fulfil other obligations to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses (e.g. storage costs). In this case, the risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer at the point in time at which he is in default of acceptance.

(4) In any case the Company shall be liable in the event of damage to goods in transit at most up to the amount of the net sales price according to the invoice which can be, was or would be issued (minimum insurance cover). The Company shall not be liable for any further damage, insofar as this is legally permissible. The Buyer shall be free to insure any further insurable damage at his own expense.

§ 5 Prices and Payment Conditions

(2)    In the case of a sale by delivery to a place other than the place of performance (§ 4 (1)), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer.

(3)    We are entitled, also within the framework of an ongoing business relationship, to make a complete or partial delivery only against advance payment. We shall declare a corresponding advance payment at the latest with the order confirmation.

(4)    Upon expiry of the payment deadline, the Buyer shall be in default. If no fixed time is specified for this, the purchase price shall be due for payment net (without deduction) within 30 days of the invoice date. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to businessmen, our claim to the commercial due date interest rate (§ 353 HGB) remains unaffected.

(5)    The Buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular pursuant to § 7 (6) sentence 2 of these GCSD.

(6)    If it becomes apparent after the conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is endangered by the Buyer’s inability to perform, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.

§ 6 Retention of Title

(1)    We retain title to the sold goods until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been fully paid.

(2)    The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties have access to goods (e.g. attachment) belonging to us.

(3)    In the event of conduct by the Buyer in breach of contract, in particular in the event of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and withdrawal. If the Buyer does not pay the due purchase price, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.

(4)    Until revoked in accordance with para. 4 (c), the Buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following supplementary provisions shall apply.

(a)    The retention of title extends to the full value of the products resulting from the processing, mixing or combining of our goods. We are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under reservation of title.

(b)    The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the Buyer stated in para. 2 shall also apply in respect of the assigned claims.

(c)    The Buyer remains authorised to collect the claim besides us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Moreover, in this case we are entitled to revoke the Buyer’s authorisation to further sell and process the goods subject to retention of title.

(d)    If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.

§ 7 Deficiency Claims of Buyer

(2)    The primary basis of our liability for defects is the agreement reached on the quality of the goods. The product descriptions designated as such (including those of the manufacturer), which were provided to the Buyer prior to his order or were included in the contract in the same way as these GCSD, shall be deemed to be an agreement on the quality of the goods.

(3)    Insofar as the quality has not been agreed, it is to be assessed in accordance with the statutory regulation whether there is a defect or not (§ 434 BGB). We accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).

(4)    The Buyer’s deficiency claims require that he has fulfilled his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or at a later date, we must be notified thereof in writing without undue delay. The notification shall be deemed to have been made without undue delay if it is made within two weeks, whereby timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Buyer shall notify us in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby timely dispatch of the notification shall also suffice to meet the deadline. If the Buyer fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect not notified shall be excluded.

(5)    If the delivered item is defective, the purchaser may initially demand, at his discretion, either remedy of the defect (subsequent repair) or delivery of a defect-free item (replacement delivery) as subsequent performance. If the Buyer does not declare which of the two rights he chooses, we can set him a reasonable deadline for this. If the Buyer does not make the choice within the time limit, the right of choice shall pass to us upon expiry of the time limit.

(7)    The Buyer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions.

(8)    If the subsequent performance has failed or a reasonable period to be set by the Buyer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the sales contract or reduce the purchase price. In the case of an insignificant defect, however, there is no withdrawal right.

§ 8 Other Liability

(1)    Unless otherwise provided for in these GCSD or other provisions included in this business relationship, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2)    We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for due care and diligence in own affairs),

a) for damages resulting from injury to life, limb or health,

b) for damages arising from the not inconsiderable breach of a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

(3)    The limitations of liability resulting from para. 2 shall also apply to breaches of duty by or in favour of persons for whose fault we are responsible in accordance with statutory provisions. They do not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the goods and for claims of the buyer under the German Product Liability Act (ProdHaftG).

(4)    The Buyer may only rescind or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular pursuant to §§ 651, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 9 Limitation

(1)    Notwithstanding § 438 (1) no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall begin with acceptance.

(2)    Further statutory special provisions on limitation (in particular § 438 (1) no. 1, (3), §§ 444, 445b BGB) shall remain unaffected.

(3)    The above limitation periods of the sales law also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages of the Buyer pursuant to § 8 (2) sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.

§ 10 Choice of Law and Place of Jurisdiction

(1)    These GCSD and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).

(2)    If the Buyer is a businessman within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in D-85551 Kirchheim bei München. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GCSD or in accordance with an overriding individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.

(3)    If a provision of these GCSD is or becomes wholly or partially invalid, the validity of the remaining provisions of the GCSD shall not be affected. The invalid provision shall be deemed to be replaced by a legally permissible provision which economically most closely reflects the purpose of the invalid provision. The same applies in the event that the GCSD contain any omissions.

(4)    The English version of the GCSD is a non-binding translation. In case of uncertainties regarding the interpretation, the German version of the GCSD’s shall prevail.