General Terms and Conditions of Sale, Delivery, and Payment of GIDEMA Solutions GmbH

Effective: October 15, 2014

I. General Provisions

1. Our General Terms and Conditions of Sale, Delivery, and Payment (General Terms and Conditions; hereinafter referred to as GTC), but limited to customers who, for their part, are acting in the course of their commercial or independent professional activities when concluding the contract, as well as to legal entities under public law and special funds under public law.
2. Our GTC also apply to all future business relationships, even if they are not expressly agreed upon again. Any general terms and conditions of the customer that deviate from these GTC will not be recognized. Deviations from these GTC are only effective if this has been agreed upon or confirmed to us in writing.

II. Offer, Conclusion of Contract, and Contract Documents

1. Our offers are always subject to change and revocable at any time, provided they have not yet been legally bindingly accepted.
2. Unless otherwise expressly agreed, we retain ownership and copyright to cost estimates, drawings, and other offer documents. The documents may only be made available to third parties with our prior consent.
3. Unless otherwise agreed, our written order confirmation shall determine the scope of delivery. Side agreements and amendments require our written confirmation.
4. Samples are supplied only against payment.

III. Prices, Terms of Payment

1. The prices stated in the order confirmation apply; alternatively, the prices valid at the time of receipt of the order apply. Unless otherwise agreed, prices are ex works plus applicable VAT. The customer bears the costs of packaging, shipping, and any freight insurance taken out at the customer’s request.
2. Contract work and installation services are not eligible for discounts and are subject to a payment term of 14 days net.
3. Invoices are payable strictly net on the due date.
4. Bills of exchange and checks are considered performance on account of fulfillment. Bills of exchange are accepted only by special agreement; the customer bears the discount and fees.
5. The customer may offset only those claims that are undisputed or have been legally established. The customer may exercise a right of retention only if the counterclaim is based on the same contractual relationship.
6. In the event of the customer’s default in payment, default interest shall be charged at the statutory rate. We are entitled at any time to prove and invoice a higher amount of interest damage.
7. If a significant deterioration in the customer’s financial situation occurs that impairs their creditworthiness, or if we become aware of such circumstances, we may declare all claims against the customer that are not subject to defense immediately due and payable and assert a right of retention against all claims of the customer, even if they are based on other contracts, or demand performance on a counter-performance basis or the provision of security.
8. If, after the conclusion of the contract, taxes or fees affecting the movement of goods change, we are entitled to make corresponding price adjustments if these changes were not foreseeable at the time the contract was concluded. The same applies to unforeseeable increases in personnel costs as well as price increases by upstream suppliers that were not known at the time the contract was concluded but take effect prior to delivery to us.

IV. Delivery, Default, Impossibility

1. The delivery dates we specify are approximate; they are indicative and non-binding. Delivery periods begin upon dispatch of the order confirmation. Compliance with agreed delivery periods is contingent upon the timely receipt of all documents to be provided by the customer, as well as the customer’s compliance with the agreed payment terms and other obligations. If this is not the case, the delivery period shall be extended accordingly.
2. Partial deliveries are permitted to a reasonable extent, and separate invoicing for such deliveries is permitted.
3. Deviations from the order quantity or the agreed specifications are permissible provided they fall within customary commercial tolerances for quantity or quality.
4. The delivery period is deemed met if the delivery item has left our factory by the time it expires or if readiness for shipment has been notified.
5. All delivery obligations are subject to correct and timely supply from our own suppliers.
6. In the event of unforeseen obstacles beyond our control that we could not avert despite exercising reasonable care under the circumstances of the case—regardless of whether they occur at our facility or at a subcontractor’s, e.g., delays in the delivery of essential raw materials, strikes, lockouts, etc.— —we are entitled to withdraw from the delivery contract in whole or in part or to extend the delivery period by the duration of the hindrance. We will notify the customer of such circumstances without delay. If the hindrance lasts longer than three months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with respect to the part not yet fulfilled.
7. In the event of a delay in delivery, the customer may withdraw from the contract after a reasonable grace period has expired without result; in the event of impossibility of performance on our part, the customer is entitled to this right even without a grace period. A delay in delivery is deemed equivalent to impossibility if delivery has not taken place for more than two months.

V. Call-off Orders

1. For contracts involving continuous delivery, call-offs or allocation of product types must be submitted to us in approximately equal monthly quantities. If the total of the individual call-offs exceeds the contractually agreed quantity, we are entitled, but not obligated, to deliver the excess quantity. The price is based on the market price existing for comparable specifications at the time of the call-off.
2. Unless specific call-off dates have been agreed upon, bindingly ordered call-off quantities must be accepted no later than one month after the expiration of the contract term (framework purchase period), without the need for a separate request for acceptance. Upon expiration of this period, we are entitled to ship the goods and invoice them or to withdraw from the contract in whole or in part.

VI. Shipping and Transfer of Risk

1. The place of performance and fulfillment for the contractual obligations is our place of business.
2. The goods are shipped exclusively at the customer’s request. Unless otherwise agreed, the route and means of shipment are at our discretion.
3. The risk of deterioration of the goods and the risk of payment shall pass to the customer at the time the goods are handed over by us to the forwarding agent, carrier, or any other person or entity designated to carry out the shipment, but no later than upon leaving our warehouse. If the goods are ready for shipment and shipment or acceptance is delayed for reasons attributable to the customer, the risk passes to the customer upon receipt of the notice of readiness for shipment.
4. Delivered items must be accepted by the customer, even if they exhibit minor defects.
5. The client is obligated to accept the goods as soon as we have notified them of the completion of the services ordered. If the client does not accept the goods within 2 weeks of notification, acceptance shall be deemed to have taken place, provided that the client was expressly informed of this deemed acceptance in the notification. This also applies if the contractor refuses acceptance without being entitled to do so.
6. If shipment is made in returnable containers, these must be emptied and returned freight prepaid within 30 days of receipt of the delivery. Loss or damage to returnable packaging, as long as it has not been returned to us, shall be borne by the client if the client is responsible for such loss or damage. Returnable packaging may not be used for other purposes or to hold other items. It is intended solely for the transport of the delivered goods. Labels may not be removed.
7. In the event of damage to or loss of the goods during transport, an inventory must be taken immediately and we must be notified. Claims arising from any transport damage must be asserted by the client with the carrier without delay.
8. Partial performance and partial deliveries are permissible provided that they do not result in any disadvantages for the client.

VII. Retention of Title

1. We reserve title (reserved goods) to all goods delivered by us until receipt of all payments arising from the existing business relationship with the customer; this reservation also applies to all outstanding balances from current accounts. The customer is obligated to treat the goods subject to retention of title belonging to us with due care.
2. Any processing or treatment of the goods subject to retention of title is carried out on our behalf as the manufacturer, without this giving rise to any liabilities on our part. If the customer combines, mixes, blends, or processes the goods subject to retention of title with other goods, or if the customer transforms them, we shall acquire co-ownership of the new item in the ratio of the value (invoice value) of the goods subject to retention of title to the other combined, mixed, blended, or processed items. The customer shall hold the co-ownership in safekeeping for us free of charge.
3. The customer may sell the goods subject to retention of title owned by us only in the ordinary course of business. Any other dispositions, in particular pledging or transfer by way of security of the goods subject to retention of title, are not permitted. The customer hereby assigns to us, by way of security, all claims (including VAT) arising from the resale or any other legal basis (insurance, tort) with respect to the goods subject to retention of title; we accept such assignment. The customer remains entitled to collect the assigned claims in the ordinary course of business.
4. If the value of the security interests to which we are entitled exceeds the amount of all secured claims by more than 20%, we shall, at the customer’s request, release the excess security at our discretion.
5. The customer’s authorization to sell the goods subject to retention of title, as well as to process, transform, mix, combine, and blend them, and furthermore to collect the assigned claims, shall expire in the event of non-compliance with the terms of payment, in the event of unauthorized dispositions, and also if insolvency proceedings are filed against the customer or initiated by the customer. In this case, we are entitled to take immediate possession of the goods subject to retention of title. Our repossession of the goods, assertion of the retention of title, or seizure of the goods subject to retention of title does not constitute a withdrawal from the contract, unless we expressly declare this.
6. In the event of third-party access to the goods subject to retention of title, the customer shall indicate our ownership and notify us immediately.

VIII. Tools

1. If tools requiring special manufacture are necessary to fulfill a customer order, ownership of the tool manufactured by us or a third party commissioned by us shall, unless otherwise agreed, vest exclusively in us. This also applies if our customer has contributed to the tool costs as agreed.
2. The costs for the manufacture and maintenance of the tools are listed in the offer and the order confirmation. The tool costs are payable strictly net upon order confirmation, unless otherwise stated in the order confirmation.

IX. Cancellation Costs

1. If our customer unjustifiably withdraws from a placed order or if the contract is not performed for reasons attributable to our customer, we may claim 10% of the agreed remuneration as lump-sum damages, without prejudice to the right to claim higher actual damages.
2. Our customer remains free to prove that no damage was incurred at all or that it was lower than the lump sum specified in Section 1.

X. Infringement of Third-Party Intellectual Property Rights.

1. To the extent that parts manufactured by us based on our customer’s drawings, models, or samples infringe upon third-party intellectual property rights, the customer shall indemnify us against any claims for damages by third parties.
2. If a third party prohibits us from further manufacturing or delivering such items by invoking industrial property rights, we are entitled, without examining the legal situation, to suspend our services and to demand reimbursement from our customer for the costs incurred to date, together with cancellation costs (Section IX).

XI. Notice of Defects, Warranty, Liability, Statute of Limitations

1. The customer must carefully inspect deliveries from the supplier based on purchase or work-and-materials contracts for defects, shortages, etc., and must report any complaints in detail in writing, no later than two weeks after handover or delivery. If a defect that was already present at the time of handover only becomes apparent later (hidden defect), this must also be reported immediately and in writing upon its discovery.
2. We provide a warranty for defects in the goods that are not merely minor by means of repair or replacement, at our discretion.
3. The customer must grant us reasonable time and opportunity to perform the necessary repair or replacement; otherwise, we are released from liability for the resulting consequences.
4. We may refuse to perform the subsequent performance as long as the customer has not fulfilled their payment obligations to us to an extent corresponding to the defect-free portion of our performance. At the same time, in the event of a justified complaint, the customer’s right of retention is permissible only to an extent that is reasonable and proportionate to the defect and the contract price.
5. If the repair fails or is unreasonable for us, the customer has the right to withdraw from the contract or to reduce the contract price.
6. No liability is assumed for natural wear and tear or damage arising after the transfer of risk as a result of improper or negligent handling, excessive strain, etc. If the customer or a third party performs improper repairs, we shall not be liable for the resulting consequences. The same applies to modifications to the delivered item made without our prior consent.
7. Unless otherwise provided in Section XII of these General Terms and Conditions, further claims by the customer, regardless of their legal basis (in particular claims arising from breach of primary and secondary obligations, tort, fault at the time of contract conclusion, and other tortious liability), are excluded; this also applies to damage outside the purchased item as well as to claims for compensation for lost profits.
8. Claims by the customer arising from or in connection with defects shall be barred by the statute of limitations 12 months after the transfer of risk. For claims for damages arising from damage not incurred to the delivery item itself and for claims arising from
9. manufacturer’s recourse pursuant to Sections 478, 479 of the German Civil Code (BGB), the respective statutory periods shall apply. These also apply to defects in a structure or to delivered items that were used in accordance with their customary use for a structure and caused its defectiveness, as well as in the cases provided for in Sections 438(3) and 634a(3) of the German Civil Code (BGB).

XII. Damages and Liability

1. Claims for damages are excluded in accordance with the following provisions, regardless of the nature of the breach of duty, including torts, unless there is intentional or grossly negligent conduct.
2. In the event of a breach of material contractual obligations, we shall be liable for any negligence, but only up to the amount of the foreseeable damage typical for this type of contract. Claims for lost profits, as well as indirect and consequential damages, shall not be compensated, unless a quality characteristic guaranteed by us is specifically intended to protect the contractual partner against such damages.
3. The limitations and exclusions of liability in Sections 1 and 2 do not apply in cases of liability for guaranteed characteristics, in cases of impossibility for which we are responsible, or in cases of culpable injury to life, limb, or health. Claims under the Product Liability Act or pursuant to other mandatory statutory liability provisions remain unaffected as well.
4. To the extent that our liability is excluded or limited, this also applies to our employees, workers, representatives, or other vicarious agents and subcontractors.
5. In the event of a claim for reimbursement of expenses, the preceding sections apply accordingly.

XIII. Place of Jurisdiction and Applicable Law

1. German law applies to these General Terms and Conditions and all legal relationships between the User and the Customer. The UN Convention on Contracts for the International Sale of Goods (Vienna Convention of April 11, 1980) does not apply. The German language is the language of negotiation and the contract.
2. The place of performance and venue for all claims and legal disputes arising from the contractual relationship, including proceedings concerning bills of exchange and documents, is our registered office.
3. Should individual provisions of these General Terms and Conditions or parts of the contract be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions of the General Terms and Conditions nor the validity of the contract.

Notes:

§1 Force Majeure

1. Significant, unforeseeable operational disruptions for which we are not at fault, delays in delivery or failure to deliver, as well as operational interruptions due to shortages of energy, raw materials, or labor, strikes, lockouts, difficulties in procuring means of transport, traffic disruptions, orders from public authorities, and cases of force majeure occurring at our premises or those of our suppliers shall extend our performance period by the duration of the aforementioned impediments to performance. This also applies if we were already in default of performance when these circumstances arose. The client shall notify us of the beginning and end of such impediments without delay, at the latest within one week. If the delivery or service is delayed by more than six weeks, both the client and we are entitled to withdraw from the contract with respect to the affected scope of services.

§2 Confidentiality

1. The client is obligated to treat all commercial and technical details related to the commission as trade secrets. The client is obligated to maintain confidentiality regarding the documents and information even after the respective contract has been fulfilled. Reproduction is permitted only within the scope of operational requirements and copyright provisions. Disclosure to third parties may only take place with our written consent.
2. If the client comes into contact with our trade secrets during the execution of the order, they must maintain confidentiality regarding them and take precautions to ensure that our legitimate interests are not infringed upon and that protected information is used only in connection with the order or the subsequent use of the object of the order itself. In particular, the client bears the burden of proof that the trade secrets and/or know-how were already known to them or at least were publicly known.