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Terms and Conditions of Sale and Delivery of ABC Design GmbH

The supply contracts concluded by us with businesses within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) shall be governed exclusively by the following Terms and Conditions of Sale and Delivery, even where we do not expressly object to a buyer’s terms and conditions of purchase. Our Terms and Conditions of Sale and Delivery shall also apply to all future deliveries, services or offers made to the customer, even where they are not separately agreed again.

Prices

Prices are ex works and exclude value added tax, customs duties, packaging, carriage, freight and any other ancillary services (EXW Albbruck, Incoterms 2010). The prices applicable shall be those valid in euros on the date of dispatch.

Payment and Set-off

Payment shall be due immediately, net, upon receipt of the invoice. The buyer may set off claims against our claims only where the buyer’s counterclaims are undisputed or have been finally determined by a court, or where the counterclaims are reciprocal to our claims.

We purchase the products in US dollars. Where we sell the products to the buyer in euros, we reserve the right to increase the agreed selling price accordingly if, at the time of delivery, the USD/EUR exchange rate has changed to our disadvantage by at least 5% compared with the exchange rate at the time the contract was concluded. The relevant rate shall be the current reference rate published by the European Central Bank. In the event of an increase in the selling price, the buyer shall be entitled to withdraw from the contract by giving notice within 14 days of receiving our notification of the price increase.

Late payment: In the event of late payment, default interest shall be charged at a rate of 9 percentage points above the base interest rate.

We shall be entitled to carry out or provide outstanding deliveries or services only against advance payment or the provision of security if, after conclusion of the contract, we become aware of circumstances that are likely to materially reduce the buyer’s creditworthiness and that jeopardise payment by the buyer of our outstanding claims arising from the relevant contractual relationship, including all individual orders.

Products

Unless otherwise agreed, the products and any operating instructions are intended solely for distribution in the country in which the buyer has its registered office.

Packaging

The products shall be packaged in the customary commercial manner and packaging shall be charged at the lowest possible cost.

Delivery

Delivery dates and periods shall be governed by the arrangements made in each individual case. We shall assume the procurement risk irrespective of fault only where this has been expressly agreed. The agreed delivery period shall be extended by a reasonable period if the buyer delays in carrying out any necessary acts of cooperation or subsequently requests amendments to the contract. Delivery periods and dates shall be deemed to have been met once the goods are ready for dispatch and the buyer has been notified accordingly. Where delivery ex works has not been agreed, delivery shall be deemed to have been made on time if we hand the delivery item over for transport in due time.

We shall not be liable for an inability to deliver or for delays in delivery where these are caused by force majeure or other events that were unforeseeable at the time the contract was concluded and for which we are not responsible, including, for example, operational disruptions of any kind, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures, or suppliers failing to deliver, delivering incorrectly or delivering late. In the case of temporary impediments, the delivery or performance periods shall be extended, or the delivery or performance dates postponed, by the duration of the impediment plus a reasonable start-up period. If, in such a case, it cannot be expected that we will be able to perform within a reasonable period acceptable to the buyer, and in any event within no more than four months, both we and the buyer shall be entitled to withdraw from the contract.

Dispatch

In all cases, dispatch shall be made at the buyer’s request, expense and risk, even where, at the request of parcel or freight acceptance points, the consignments bear notices such as “at sender’s risk”, “inadequately packaged” or similar wording.

Delay in Acceptance

If the buyer is in delay in accepting the goods, or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to claim compensation for the resulting loss, including additional expenses such as storage costs. For this purpose, we shall charge lump-sum compensation amounting to 0.5% of the invoice amount of the goods to be stored for each completed week, up to a maximum of 5% of the invoice amount, commencing on expiry of the delivery period or, where no delivery period has been specified, upon notification that the goods are ready for dispatch. This shall not exclude the right to claim loss caused by the delay in excess of the lump sum. The buyer shall remain entitled to prove that we suffered no loss at all or a substantially lower loss than the lump sum stated above.

Complaints and Defect Claims by the Buyer

The buyer shall inspect the goods immediately upon receipt to verify their condition and shall notify us in writing without undue delay of any complaints.

Where the purchased item is defective, we shall, at our discretion, be entitled to provide subsequent performance either by remedying the defect or by supplying a new item free of defects. In the event of subsequent performance, we shall bear all expenses necessary for remedying the defect, in particular transport, travel, labour and material costs, unless those expenses are increased because the purchased item has been moved to a location other than the place of performance. However, if the buyer’s request for rectification proves to be unjustified, we may require the buyer to reimburse the costs incurred as a result, unless the buyer could not reasonably have recognised that no defect existed. If subsequent performance fails, the buyer shall be entitled, at its discretion, to withdraw from the contract, reduce the price and/or claim damages in accordance with the statutory provisions and the following section entitled “Liability”.

Except in cases of fraudulent concealment or intentional breaches of duty, claims for defects shall generally become time-barred 12 months after delivery. Claims for damages arising from culpable injury to life, limb or health, culpable breach of material contractual obligations, and defects in quality caused intentionally or through gross negligence by one of our legal representatives or senior agents shall become time-barred within the statutory limitation periods. A claim for damages arising from breach of the duty to provide subsequent performance pursuant to sections 437 no. 1 and 439 BGB shall exist only where, within the 12-month limitation period, both (a) the buyer requested subsequent performance and (b) we breached our duty to provide subsequent performance. The special statutory provisions governing delivery of goods to a consumer, including supplier recourse under sections 478 and 479 BGB, shall remain unaffected.

Liability

The following limitations of liability shall apply to all liability for damages, irrespective of the legal basis.

We shall be liable in accordance with the statutory provisions for any breach attributable to us of material contractual obligations, meaning obligations whose performance characterises the contract, makes its proper performance possible in the first place, and on whose performance the other party relies and is entitled to rely. However, unless we have acted intentionally or with gross negligence, our liability shall be limited to the foreseeable loss that typically occurs.

For all other breaches of duty, we shall be liable only where the loss was caused intentionally or through gross negligence by one of our legal representatives or senior agents. In such a case, where the loss was not caused intentionally, our liability shall be limited to the foreseeable loss that typically occurs.

Liability under the German Product Liability Act shall remain unaffected; the same applies to liability for culpable injury to life, limb or health. Where we have given a guarantee, we shall be liable in accordance with the statutory provisions.

Unless otherwise provided above, claims for damages against us arising from breaches of duty shall be excluded.

Retention of Title

The goods shall remain our property until all claims arising from the business relationship with us have been paid in full, including ancillary claims, claims for damages, and the honouring of cheques and bills of exchange. Subject to the following provisions, the buyer shall be entitled to process and sell the goods:

  1. a) The buyer shall be entitled to resell the purchased item in the ordinary course of business, provided that it has not agreed a prohibition on assignment with its customer. This authority shall end, in particular, upon an application for or the opening of insolvency proceedings. If the goods subject to retention of title are resold, including where we hold co-ownership, the buyer hereby assigns to us in advance all claims arising from the resale, together with all ancillary rights and any current-account claims, and we accept that assignment. In the case of co-ownership, the assignment shall apply to the proportion of the claims corresponding to our co-ownership share, measured by invoice value. The same shall apply to any other claims that take the place of the goods subject to retention of title or otherwise arise in relation to them, such as insurance claims or claims in tort in the event of loss or destruction. We authorise the buyer to collect the claims assigned to us in its own name for our account. If the buyer is at least one week in default of payment, or if an application has been made to open insolvency proceedings over its assets, we shall be entitled at any time to revoke the authority to collect, disclose the assignment to the buyer’s customers, collect the claims directly, and require the buyer to provide all information and documents needed for this purpose.
  2. b) Any processing or transformation of the purchased item by the buyer shall always be carried out on our behalf as manufacturer, without giving rise to any obligations on our part. If the goods subject to retention of title are processed together with materials belonging to other owners, or if the value of the processed item is higher than the value of the goods subject to retention of title, we shall acquire co-ownership of the new goods in the proportion that the pro-rata invoice value of the goods subject to retention of title bears to the value of the new goods. If such acquisition of ownership by us does not occur, the buyer hereby transfers to us by way of security its future ownership, or co-ownership in the above proportion, of the newly created item. In all other respects, the same provisions shall apply to the item created by processing as apply to the purchased item supplied subject to retention of title.
  3. c) At the buyer’s request, we undertake, at our discretion, to release the security interests to which we are entitled to the extent that their value exceeds the secured claims by more than 50%.
  4. d) The buyer shall store the goods subject to retention of title separately from its own goods and those of third parties and shall identify them as our property. The buyer shall insure the goods subject to retention of title to the customary extent against usual risks such as fire, theft and water damage.

Governing Law, Place of Performance and Jurisdiction

These Terms and Conditions of Sale and Delivery and all legal relationships between the seller and the buyer shall be governed by the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods.

Albbruck shall be the place of performance for all obligations and the place of jurisdiction for all disputes arising in connection with this contract. In addition, we shall be entitled, at our discretion, to bring our own claims against the buyer before the courts having jurisdiction at the buyer’s registered office.

Version: April 2018.