General Terms and Conditions of Sale and Delivery

for Services and Goods
Pro-Con Buerstentechnik GmbH
Wiesenstrasse 83, 72461 Albstadt, Germany
Email: info@pro-con-buerstentechnik.de
(hereinafter referred to as “Contractor”)

Section 1 Scope of Application

(1) All deliveries, services and offers of the Contractor shall be made exclusively on the basis of these General Terms and Conditions of Sale and Delivery. These shall form an integral part of all contracts concluded by the Contractor with its contractual partners (hereinafter also referred to as “Client”) for the deliveries or services offered by it. They shall also apply to all future deliveries, services or offers to the Client, even if they are not separately agreed upon again.

(2) The Contractor exclusively concludes contracts with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). Contracts with consumers (Section 13 BGB) are excluded.

(3) Terms and conditions of the Client or third parties shall not apply, even if the Contractor does not separately object to their validity in individual cases. Even if the Contractor refers to a letter containing or referring to terms and conditions of the Client or a third party, this shall not constitute agreement to the validity of those terms and conditions.

Section 2 Offer and Conclusion of Contract

(1) All offers of the Contractor are non-binding and without obligation, unless they are expressly marked as binding or contain a specific acceptance period. The Contractor may accept orders or commissions within fourteen days of receipt.

(2) The written contract, including these General Terms and Conditions of Sale and Delivery, shall be solely authoritative for the legal relationship between the Contractor and the Client. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal commitments made by the Contractor prior to the conclusion of this contract are legally non-binding, and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they shall continue to apply. Amendments and additions to the agreements made, including these Terms and Conditions, require written form to be effective. With the exception of managing directors or authorised signatories (Prokuristen), the employees of the Contractor are not authorised to make deviating verbal agreements. Transmission by fax or email shall be sufficient to meet the written form requirement.

(3) The Contractor reserves ownership or copyright in all offers and cost estimates submitted by it, as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Client. The Client may not make these items accessible to third parties, either as such or in terms of content, disclose them, use them itself or through third parties, or reproduce them without the express consent of the Contractor. Upon request by the Contractor, the Client shall return these items in full and destroy any copies made if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

Section 3 Prices and Payment

(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be charged separately. Prices are quoted in EUR ex works, plus packaging, statutory value added tax, customs duties for export deliveries, as well as fees and other public charges.

(2) Insofar as the agreed prices are based on the Contractor’s list prices and the delivery is not to take place until more than four months after conclusion of the contract, the Contractor’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).

(3) Invoice amounts are payable within thirty days without any deduction, unless otherwise agreed in writing. The date of receipt by the Contractor shall be decisive for the date of payment. Cheques shall only be deemed payment upon encashment. If the Client fails to pay when due, interest shall be charged on the outstanding amounts at a rate of 9 percentage points above the base interest rate per annum from the due date; the right to claim higher interest and further damages in the event of default remains unaffected.

(4) Set-off against counterclaims of the Client or withholding of payments on account of such claims shall only be permissible insofar as the counterclaims are undisputed or have been established by final court judgment.

(5) The Contractor shall be entitled to carry out or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, circumstances become known to it which are likely to substantially reduce the creditworthiness of the Client and which jeopardise the payment of the Contractor’s outstanding claims by the Client under the respective contractual relationship (including other individual orders to which the same framework agreement applies).

Section 4 Delivery and Delivery Time

(1) Deliveries shall be made ex works.

(2) Deadlines and dates indicated by the Contractor for deliveries and services shall always be approximate only, unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.

(3) The Contractor may – without prejudice to its rights arising from default by the Client – demand an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Client fails to meet its contractual obligations towards the Contractor.

(4) The Contractor shall not be liable for impossibility of delivery or for delivery delays insofar as these have been caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, transport delays, strikes, official measures) which the Contractor is not responsible for. If such events make delivery or performance significantly more difficult or impossible for the Contractor and the hindrance is not only of temporary duration, the Contractor shall be entitled to withdraw from the contract. In the case of hindrances of temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the Client cannot reasonably be expected to accept the delivery or service as a result of the delay, the Client may withdraw from the contract by immediate written declaration to the Contractor.

(5) The Contractor shall only be entitled to make partial deliveries if the partial delivery can be used by the Client within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured, and the Client does not incur any significant additional expense or additional costs as a result (unless the Contractor agrees to bear these costs).

(6) If the Contractor is in default with a delivery or service, or if a delivery or service becomes impossible for the Contractor for whatever reason, the Contractor’s liability for damages shall be limited in accordance with Section 8 of these General Terms and Conditions of Sale and Delivery.

Section 5 Place of Performance, Shipment, Packaging, Transfer of Risk, Acceptance

(1) The place of performance for all obligations arising from the contractual relationship shall be the Contractor’s place of business, unless otherwise specified. If the Contractor also owes installation, the place of performance shall be the place where the installation is to be carried out.

(2) The method of shipment and packaging shall be subject to the Contractor’s reasonable discretion.

(3) The risk shall pass to the Client no later than upon handover of the delivery item to the forwarding agent, carrier or other third party designated to carry out the shipment (whereby the start of the loading process shall be decisive). This shall also apply if partial deliveries are made or if the Contractor has assumed other services (e.g. shipment or installation). If shipment or handover is delayed due to a circumstance caused by the Client, the risk shall pass to the Client from the day on which the Contractor is ready for shipment and has notified the Client thereof.

(4) Storage costs after transfer of risk shall be borne by the Client. In the case of storage by the Contractor, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per elapsed week. The right to assert and prove higher or lower storage costs remains reserved.

(5) The consignment shall only be insured by the Contractor against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Client and at the Client’s expense.

(6) Insofar as acceptance is to take place, the purchased goods shall be deemed accepted if delivery has been completed and, if the Contractor also owes installation, if installation has been completed, the Contractor has notified the Client thereof with reference to the deemed acceptance under this Section 5(6) and has requested the Client to accept, twelve working days have elapsed since delivery or installation or the Client has begun to use the purchased goods (e.g. has put the delivered system into operation) and in this case six working days have elapsed since delivery or installation, and the Client has failed to accept within this period for a reason other than a defect notified to the Contractor which makes use of the purchased goods impossible or significantly impairs it.

Section 6 Warranty

(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance.

(2) The delivered items shall be carefully inspected immediately after delivery to the Client or to the third party designated by the Client. They shall be deemed approved if the Contractor has not received written notice of defects in respect of obvious defects or other defects that were recognisable upon an immediate, careful inspection within seven working days of delivery of the delivery item, or otherwise within seven working days of discovery of the defect or the time at which the defect was recognisable to the Client during normal use of the delivery item without closer inspection. At the Contractor’s request, the delivery item complained of shall be returned to the Contractor carriage paid. In the event of a justified notice of defects, the Contractor shall reimburse the costs of the most favourable shipping route; this shall not apply insofar as the costs increase because the delivery item is located at a place other than the place of intended use.

(3) In the event of material defects in the delivered items, the Contractor shall initially be obliged and entitled, at its discretion to be exercised within a reasonable period, to remedy the defect or deliver a replacement. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of remedy or replacement delivery, the Client may withdraw from the contract or reduce the purchase price appropriately.

(4) If a defect is due to the fault of the Contractor, the Client may claim damages under the conditions set out in Section 8.

(5) In the case of defects in components of other manufacturers which the Contractor cannot remedy for licensing or practical reasons, the Contractor shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. Warranty claims against the Contractor for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Sale and Delivery if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example due to insolvency, is without prospect of success. The limitation of the Client’s relevant warranty claims against the Contractor shall be suspended for the duration of the legal dispute.

(6) The warranty shall not apply if the Client modifies the delivery item or has it modified by third parties without the Contractor’s consent and this makes the remedy of the defect impossible or unreasonably difficult. In any event, the Client shall bear the additional costs of remedying the defect caused by the modification.

(7) A delivery of used items agreed in individual cases with the Client shall be made excluding any warranty.

Section 7 Industrial Property Rights

(1) The Contractor warrants in accordance with this Section 7 that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.

(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Contractor shall, at its discretion and at its expense, modify or replace the delivery item in such a way that no third-party rights are infringed but the delivery item still fulfils the contractually agreed functions, or procure the right of use for the Client by concluding a licence agreement. If the Contractor fails to do so within a reasonable period, the Client shall be entitled to withdraw from the contract or reduce the purchase price appropriately. Any claims for damages by the Client shall be subject to the limitations of Section 8 of these General Terms and Conditions of Sale and Delivery.

(3) In the case of infringements by products of other manufacturers supplied by the Contractor, the Contractor shall, at its discretion, assert its claims against the manufacturers and suppliers for the account of the Client or assign them to the Client. In such cases, claims against the Contractor shall only exist in accordance with this Section 7 if the judicial enforcement of the aforementioned claims against the manufacturers and suppliers was unsuccessful or, for example due to insolvency, is without prospect of success.

Section 8 Liability for Damages due to Fault

(1) The Contractor’s liability for damages, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall, insofar as fault is relevant in each case, be limited in accordance with this Section 8.

(2) The Contractor shall not be liable a) in the case of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents; b) in the case of gross negligence on the part of its non-managerial employees or other vicarious agents, unless it involves a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install on time and free of defects, as well as advisory, protective and custodial duties intended to enable the Client to use the delivery item in accordance with the contract or to protect the life or limb of the Client’s personnel or third parties or the Client’s property from significant damage.

(3) Insofar as the Contractor is liable for damages in principle pursuant to Section 8(2), this liability shall be limited to damages which the Contractor foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which it should have foreseen, taking into account the circumstances known to it or which it should have known, if it had exercised due care and attention. Indirect damages and consequential damages resulting from defects in the delivery item shall only be compensable insofar as such damages are typically to be expected when the delivery item is used for its intended purpose.

(4) The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Contractor.

(5) Insofar as the Contractor provides technical information or acts in an advisory capacity and this information or advice does not form part of the contractually agreed scope of services owed by it, this shall be done free of charge and excluding any liability.

(6) The limitations of this Section 8 shall not apply to the Contractor’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health, or under the Product Liability Act.

Section 9 Retention of Title

(1) The goods delivered by the Contractor to the Client shall remain the property of the Contractor until all secured claims have been paid in full. The goods and the goods covered by the retention of title replacing them pursuant to this clause are hereinafter referred to as “reserved goods”.

(2) The Client shall store the reserved goods free of charge for the Contractor.

(3) The Client shall be entitled to process and sell the reserved goods in the ordinary course of business until the enforcement event occurs (paragraph 8). Pledging and transfer by way of security are not permitted.

(4) If the reserved goods are processed by the Client, it is agreed that the processing shall take place in the name and for the account of the Contractor as manufacturer and that the Contractor shall directly acquire ownership or – if the processing is carried out using materials of several owners or if the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in proportion to the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership by the Contractor should occur, the Client hereby transfers its future ownership or – in the aforementioned proportion – co-ownership of the newly created item to the Contractor as security. If the reserved goods are combined with other items to form a single item or inseparably mixed and if one of the other items is to be regarded as the main item, the Contractor, insofar as the main item belongs to it, shall transfer proportionate co-ownership of the single item to the Client in the proportion specified in sentence 1.

(5) In the event of resale of the reserved goods, the Client hereby assigns by way of security the resulting claim against the purchaser – in the case of co-ownership by the Contractor of the reserved goods, proportionately in accordance with the co-ownership share – to the Contractor. The same shall apply to other claims which take the place of the reserved goods or otherwise arise in respect of the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. The Contractor revocably authorises the Client to collect the claims assigned to the Contractor in its own name for the account of the Contractor. The Contractor may only revoke this collection authorisation in the event of enforcement.

(6) If third parties access the reserved goods, in particular by seizure, the Client shall immediately inform them of the Contractor’s ownership and inform the Contractor thereof in order to enable it to enforce its ownership rights. If the third party is unable to reimburse the Contractor for the judicial or extrajudicial costs incurred in this connection, the Client shall be liable to the Contractor for this.

(7) The Contractor shall release the reserved goods and the items or claims replacing them at the Client’s request at the Contractor’s discretion, insofar as their value exceeds the amount of the secured claims by more than 50%.

(8) If the Contractor withdraws from the contract due to conduct by the Client in breach of contract – in particular default in payment – (enforcement event), it shall be entitled to demand the return of the reserved goods.

Section 10 Final Provisions

(1) The place of jurisdiction for all disputes arising from the business relationship between the Contractor and the Client shall, at the Contractor’s discretion, be Albstadt or the Client’s registered office. Albstadt shall be the exclusive place of jurisdiction for actions against the Contractor. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

(2) The relations between the Contractor and the Client shall be governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

(3) Insofar as the contract or these General Terms and Conditions of Sale and Delivery contain gaps, those legally effective provisions shall be deemed to have been agreed to fill these gaps which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Sale and Delivery if they had been aware of the gap.