General Terms and Conditions of Sale

Ennepetaler Schneid- und Mähtechnik GmbH & CO. KG. Kölner Str. 29, 58256 Ennepetal

§ 1 General Terms, Scope

1. The following General Terms and Conditions of Sale (in German: “AVB”) apply to all business relations with our customers (hereinafter referred to as "Buyer"). The General Terms and Conditions of Sale are valid only if the Buyer is an entrepreneur (§ 14 BGB (German Civil Code)), a legal entity governed by public law, or a special fund under public law.
2. The General Terms and conditions of Sale apply in particular to contracts for the sale and/or supply of movable objects (hereinafter also: "goods"), irrespective of whether we produce the commodities ourselves or purchase them from suppliers (§§ 433, 651 BGB). The General Terms and Conditions of Sale shall also apply in its respective version as a framework agreement for future contracts pertaining to the sale and/or supply of movables with the same Buyer, without any requirement on our part to repeat reference to them in each individual case; the Buyer will be always be informed immediately of any changes to the General Terms and Conditions of Sale.
3. Our Terms and Conditions shall apply exclusively. Other contrasting, contradicting or supplementing General Terms and Conditions of Sale as set out by the Buyer will not form part of the contract unless explicitly approved of by us. This requirement of consent applies in any event, for example even if we, being aware of the Buyer's deviating General Terms and Conditions of Sale, execute delivery to the Buyer without reservation.
4. Individual agreements with the Buyer, made on a case by case basis (including side agreements, additions and amendments), always have precedence over these General Terms and Conditions of Sale. A written contract or our written confirmation is decisive for the content of such agreements.
5. Legally relevant declarations and notifications which are to be submitted to us by the Buyer after conclusion of contract (e.g. setting of deadlines, notifications of defects, cancellation or reduction of payment), need to be made in writing in order to be valid.
6. References to the validity of statutory regulations shall only have clarifying significance. The statutory regulations therefore shall also apply without such a clarification insofar as they are not directly amended or expressly excluded in these General Terms and Conditions of Sale.

§ 2 Conclusion of Contact

1. Our offers are non-binding and subject to change. This also applies if we have provided the Buyer with catalogues, technical documents (e.g. drawings, plans, calculations, cost estimates and references to DIN standards), other product specifications or documents – including in electronic form – to which we reserve the right of property and copyright.
2. The order of goods by the Buyer is considered a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer within 1 week of its receipt.
3. The acceptance can be made either in writing (e.g. by confirmation of order) or by distribution of the commodity to the Buyer. Acceptance may be declared either in writing (e.g. by confirmation of the order) or through the supply of goods to the Buyer.

§ 3 Delivery Deadline, Delay in Delivery

1. The delivery deadline will be individually agreed upon or indicated by us upon receipt of the order.
2. Should we be unable to meet binding delivery dates for any reason for which we cannot be held responsible (non-availability of the goods or services), we will inform the Buyer without undue delay and at the same time inform the Buyer of the new probable delivery date. Should the specified goods or services not be available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; in this case we will immediately refund any payments already made by the Buyer. The nonavailability of goods or services in the aforementioned sense is in particular the late delivery of components by our component suppliers, if we have concluded a matching cover transaction, if neither us nor our suppliers can be held responsible for the delay, or if, in individual cases, we are not responsible for the procurement.
3. The occurrence of a delay in delivery is determined in accordance with legal provisions. In any case, however, a reminder by the Buyer is necessary. Should a delay in delivery occur, the customer is entitled to claim a lump sum compensation for damage caused by default. The lump-sum compensation shall be 0.5% of the net price (value of the delivery) for each full calendar week of delay, but in any case no more than a total of 5% of the delivery value of the delayed delivered goods. We reserve the right to prove that the Buyer has suffered no loss at all or only a substantially smaller loss than the aforementioned lump sum.
4. The rights of the Buyer in accordance with § 8 of the General Terms and Conditions of Sale and our statutory rights, especially in the case of exclusion of performance obligation (e.g. performance and/or supplementary performance becomes impossible or unreasonable), remain unaffected.

§ 4 Delivery, passing of risk, acceptance, delay in acceptance

1. The delivery is carried out ex works, where the place of performance is also respectively located. The International Commercial Terms (incoterms) apply in this context in their respective relevant version. At the request and cost of the Buyer the goods may be sent to another place of destination (contract of sale involving the carriage of goods). Insofar as not otherwise agreed we are entitled to determine the mode of shipment (in particular transport company, route of shipment, packaging) ourselves.
2. The risk of accidental loss and accidental deterioration of the goods shall pass over to the Buyer at the handover. However, in the case of a contract of sale involving the carriage of goods, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall pass to the Buyer as soon as the goods have been delivered to the carrier, the freight forwarder or the other person or institution chosen to carry out the shipment. The regulations governing contracts of sale involving the carriage of goods in §5 para. 2 apply here additionally. Insofar as an acceptance procedure has been agreed upon, this shall be decisive for the passing of risk. The statutory provisions on contracts for services shall apply analogously in other respects to an agreed acceptance. Default of acceptance by the Buyer shall be equivalent to delivery or acceptance.
3. If the Buyer is in default of acceptance, if he fails to provide an act of assistance or should our delivery be delayed for other reasons for which the Buyer is responsible, then we are entitled to request compensation for the thus arising damages, including additional expenses (e.g. storage costs). For this we shall charge the Buyer the cost of storage, in case of storage in the Seller's factory however we shall be entitled to charge at least 0.5% of the total invoice amount for each month, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment.
   The proof of higher damages and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the fixed rate is however to be offset against further monetary claims. The Buyer reserves the right to prove that no, or only substantially less than the aforementioned sum in damages were suffered.
4. A cancellation of the delivery by the Buyer can only be carried out with our consent. In the event of such a cancellation we will charge the Buyer a cancellation fee of 15% of the net product value. For any kind of custom product we must insist on an unlimited acceptance obligation. If a return of goods is agreed upon, then the condition for taking them back is the complete reusability of materials; in particular, there may be no lasting soiling or damage. In this case the retraction wil take place without monetary compensation for the Buyer.

§ 5 Prices, Terms of Payment

1. Unless otherwise agreed in individual cases, prices current at the time of contract conclusion will apply ex warehouse, plus VAT at the statutory rate.
2. In the case of a contract of sale involving the carriage of goods (§4 para. 1) the Buyer shall be responsible for transport costs ex factory, and for the costs of transport insurance should this be requested. Any customs duties, fees, taxes and other public charges are equally the responsible of the Buyer. Transport packaging and all other packaging in accordance with the Packaging Ordinance is non-returnable and becomes the Buyer's property, with the exception of pallets.
3. The purchase price is due and payable within 10 days of invoicing and delivery (or acceptance) of the goods.
4. The Buyer will be in default with the expiry of the aforementioned payment deadline. Interest is to be paid on the purchase price at the respective applicable rate of default interest during the period of delay. We reserve the right to assert any further damages from default. Our entitlement to commercial maturity interest (§ 353 HGB German Commercial Code) against merchants remains unaffected.
5. The Buyer is only entitled to set-off or to exercise any rights of lien or retention insofar that its entitlement has been determined final and binding or is undisputed. In case of delivery defects the Buyer's counterrights, particularly those in accordance with § 7 para. 6 no. 2 of these General Terms and Conditions of Sale remain unaffected.
6. If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through the inability of the Buyer to pay, then we are entitled, in accordance with statutory regulations, to refuse service and – if necessary after setting a deadline – to cancel the contract (§ 321 BGB (civil code)). In case of contracts concerning the manufacture of single items (custom-made products) we may declare cancellation immediately; the statutory regulations on the dispensability of setting deadlines remain unaffected.

§ 6 Reservation of Title

1. We reserve the right of ownership of sold goods until the full payment of all of our current and future claims from the contract of sale and the current business relationship (secured claims).
2. The goods subject to reservation of ownership may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The Buyer must inform us immediately in writing if and insofar as any access by third parties to the goods in our possession should occur.
3. In case of conduct by the Buyer which is in breach of the contract, in particular non-payment of the due purchase price, we are entitled to cancel the contract according to the statutory regulations and/or to request that the goods are handed over on the grounds of the reserved right of ownership. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, we shall be entitled to solely demand the return of the goods and reserve the right to cancellation. If the Buyer does not pay the due purchase price we may claim such rights only if we have first unsuccessfully set the Buyer a reasonable deadline for payment or if the setting of such a deadline is deemed unnecessary in accordance with the respective statutory provisions.
4. The Buyer is authorized to resell and/or to process goods that are under reservation of title within accepted business practices. In this case the following provisions shall apply in addition.
   (a) The reservation of title covers products resulting from the processing, mixing or combination of our goods in their full amount whereby we are deemed the manufacturer. If the ownership right of third parties continues to exist as a result of processing, mixing or combination with goods of third parties, then we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. The same shall also apply to the produced product as to the goods delivered under reservation of title.
   (b) The Buyer hereby now already assigns, by way of security, the claims against third parties arising from the resale of the goods or products equal to the amount of our approximate share of joint ownership pursuant to the aforementioned paragraph. We hereby accept this assignment. The obligations of the Buyer as mentioned in paragraph two also apply in view of the assigned claims.
   (c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets its payment obligations towards us, is not in default of payment, insofar as no application has been filed for the opening of insolvency proceedings, and insofar as there is no other deficiency in its ability to pay. Should this however be the case, we can request that the Buyer informs us of the assigned claims and the Buyer's debtors, provides all information necessary for the collection, hands over all relevant documents and informs the debtors (third parties) of the assignment.
   (d) If the realizable value of the securities at our disposal exceeds our secured claims by more than 10 %, we shall, upon request by the Buyer, release securities chosen by us to this extent.

§ 7 Claims for Defects of the Buyer

1. The statutory regulations shall apply to the Buyer's rights in case of defects of quality and title (including false delivery and shortfall in delivery as well as improper assembly or faulty assembly instructions) insofar as not otherwise determined below. In any case, the special provisions on final delivery of goods to a consumer (supplier recourse §§ 478,479 BGB (German Civil Code)) shall remain unaffected at any time. Claims arising from supplier recourse are excluded if the defective goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product.
2. Our liability for defects is based primarily on the agreement entered into with regard to the condition of the goods. Agreements as to the condition of the goods include any product descriptions which were made part of the individual contract. It makes no difference whether the aforementioned product descriptions come from the Buyer, the Manufacturer, or from us.
3. Insofar as no agreement was made with regard to the condition, the question as to whether or not a defect exists will be determined in accordance with the statutory provisions (§434 para. 1 sentence 2 and 3 BGB). We shall not however be liable for any public statements made by the manufacturer or any other third parties (e.g. marketing statements), which the Buyer has not pointed out to us as being decisive for the purchase.
4. In principle, we shall not be liable for defects of which the Buyer is aware of at the time of conclusion of the contract or is not aware of due to gross negligence (§ 442 BGB). Furthermore, the Buyer's claims for defects presuppose that the Buyer has satisfied its statutory obligations for inspection and reporting of complaints (§§ 377, 381 HGB (German Commerce Code). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect is determined at delivery or during the inspection or at a later time then this is to be reported to us immediately in writing. In any case, obvious defects must be reported within one week of delivery and defects not recognizable during the inspection within the same period from discovery in writing. If the Buyer fails carry out the proper inspection and/or reporting of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions..
5. If the delivered object is faulty, we can initially choose whether to provide supplementary performance by remedying the defect (subsequent improvement) or by delivery of a faultless product (replacement delivery). Our right to refuse the chosen type of supplementary performance under the statutory requirements remains unaffected.
6. We are entitled to make the owed supplementary performance dependent on the Buyer paying the due purchase price. The Buyer is however entitled to retain a part of the purchase price which is reasonable in relation to the defect.
7. The Buyer must give us the time and opportunity necessary to carry out the owed supplementary performance, in particular to hand over the goods for which a complaint was made for purposes of inspection. In the event of a substitute delivery the Buyer must return the faulty object to us in accordance with the statutory regulations. The supplementary performance does not include the upgrade of the faulty object, nor a reinstallation of the object insofar as we were not originally obliged to do so.
8. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions if there is actually a defect. Otherwise, we may demand reimbursement from the Buyer of the costs incurred from the unjustified request for rectification of the defect (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the Buyer. (
9. ) Only in urgent cases, for example if the safety of operations is at stake, or in order to avoid disproportional damage, does the Buyer have the right to carry out the defect repairs himself and to demand compensation for expenses objectively necessary for this. We are to be informed about these activities as soon as possible, if possible prior to the repair. The right to self-action does not exist if, according to statutory regulations, we would have been entitled to refuse supplementary performance.
10. If the supplementary performance has failed or a reasonable deadline as set by the Buyer for the supplementary performance has expired unsuccessfully or is unnecessary according to statutory regulations, the Buyer may cancel the purchase contract or reduce the purchase price. This right of withdrawal does however not exist in case of an insignificant defect.
11. Claims of the Buyer for damages or reimbursement of fruitless expenses only exist in accordance with §8 and are otherwise excluded.

§ 8 Other Liability / Force Majeure

1. Unless otherwise stated in these General Terms and Conditions of Sale, including the following provisions, we shall be liable in case of a breach of contractual and non-contractual duties, in accordance with the relevant statutory regulations.
2. We shall be liable for damages – no matter on what legal grounds – within the scope of fault-based liability in the event of willful intent and gross negligence. In case of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty)
   a) for damages from the injury to life, the body or the health,
   b) for damages from the breach of an essential contractual duty (obligation that is of the essence, i.e. its exact performance is so central to the purposes of the contract that the other contract party customarily relies – and is entitled to rely – on its fulfillment); in this case our liability is however limited to compensation for foreseeable typical damage.
3. The liability restrictions which can be derived from paragraph 2 shall also apply in the event of breaches of duty by or in favor of persons for whose fault we are responsible in accordance with statutory provisions. They shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods and to claims of the Buyer according to the German Product Liability Act.
4. The Buyer can only cancel or terminate the contract in case of a breach of a duty other than a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (particularly in accordance with §§ 650, 648 BGB (German Civil Code)) is excluded. Apart from this, the statutory regulations and legal consequences shall apply.
5. A case of force majeure exists if any kind of unforeseeable, serious event arises, such as, in particular, war, terrorist conflicts, epidemics, pandemics or industrial disputes, which is beyond the control of a party and which prevents a party from fulfilling its obligations in whole or in part, including fire damage, floods, strikes, business interruptions not caused by fault or negligence, administrative orders and lawful lockouts. In the event that the obligations under the contract cannot be fulfilled, the contracting party concerned shall immediately notify the other contracting party of the occurrence and the disappearance of force majeure. It will make every effort to remedy the force majeure and to limit its effects as far as possible. The contracting parties undertake to adjust the contract to the new situation in good faith. For the duration and within the scope of direct and indirect effects, the contracting parties are exempt from their obligations under the sales contract and are not liable for any damages in this respect. In addition, each Party may withdraw from the contract if it is foreseeable that an agreed performance date will be exceeded by more than 180 days.

§ 9 Limitation

1. Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for warranty claims from defects of quality and title is one year from delivery. Insofar as an acceptance has been agreed the limitation period shall begin with the acceptance.
2. However, if the goods are a building or an object which has been used for a building in accordance with its customary application and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.
3. The aforementioned limitation periods shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the goods, unless the application of the regular legal statute-of-limitations (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the Buyer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become statute-barred exclusively in accordance with the statutory limitation periods.

§ 10 Applicable Law and Place of Jurisdiction

1. The law of the Federal Republic of Germany shall apply to these General Terms and Conditions of Sale and to the contractual relation between us and the Buyer to the exclusion of all international and supranational (contractual) legal regulations, in particular the UN Convention on the International Sale of Goods.
2. Where the Buyer is a merchant (“Kaufmann”) in the sense of the HGB (German Commercial Code), a legal entity in German public law or a special fund under public law, the exclusive – international legal venue for all disputes arising directly or indirectly from the contractual relationship shall be the courts at our place of business in Ennepetal. The same applies if the Buyer is an entrepreneur in the sense of § 14 BGB. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Contract or a prior individual agreement or at the general place of jurisdiction of the buyer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.

 
Ennepetal, September 2021