General Terms and Conditions for Business and Sale of Heim-EDT GmbH, Neuweg 7, D-74589 Satteldorf

§ 1 Scope of application, general

(1) The General Terms and Conditions for Business and Sale (hereinafter referred to as “GTC”) of Heim-EDT GmbH (hereinafter referred to as “Vendor”) shall apply exclusively; the Vendor shall not accept any terms and conditions of the Customer that conflict with or differ from these GTC unless the Vendor has expressly agreed to their validity in writing within the meaning of Section 126 (1) BGB. The Vendor’s GTC shall also apply if the Vendor carries out the delivery to the Customer without reservation in the knowledge that the Customer’s terms and conditions conflict with or differ from the Vendor’s GTC.

(2) The Vendor’s GTC shall only apply if the Customer is an entrepreneur (Section 14 BGB), a legal entity under public law or a special fund under public law, Section 310 (1) BGB.

(3) Individual agreements made with the Customer in writing or text form within the meaning of Sections 126 (1), 126b BGB (including side agreements, additions and amendments) shall in any case take priority over these GTC.

(4) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, these shall apply insofar as they are not amended or expressly excluded in these GTC.

(5) These GTC shall also apply to all future transactions with the Customer.

(6) The assignment or transfer of rights and obligations arising from the contractual relationship between the Vendor and the Customer is only permitted for the Customer with the prior written consent of the Vendor.

§ 2 Conclusion of contract

(1) Contractual offers of the Vendor are subject to change and non-binding, unless expressly stated otherwise in the offer. This shall also apply if the Customer has been provided with catalogs, technical documentation or other product descriptions or documents of the Vendor – also in electronic form. The Vendor reserves the ownership rights and copyrights to such documents. The Customer requires the Vendor’s written consent before passing on these documents.

(2) The ordering of the goods by the Customer shall be considered a binding contractual offer, which can be accepted by the Vendor by order confirmation or by delivery of the goods to the Customer. Unless expressly stated otherwise in the Customer’s contractual offer, the Vendor shall be entitled to accept this contractual offer within two weeks of its receipt by the Vendor.

(3) The documents on which the offer or order confirmation is based, such as illustrations, drawings, dimensions and weights, are generally only to be understood as approximate values and are non-binding unless they are expressly designated as binding.

(4) In the case of transactions that are based on an import or export contract, the contract is only valid subject to the condition that the import or export license is granted by the competent authorities, insofar as these are legally binding.

§ 3 Prices, terms of payment, default of payment

(1) Unless otherwise agreed in individual cases, the prices are ex works (in accordance with Incoterms 2020 – “EXW”) plus the respective statutory value added tax and excluding packaging and other shipping and transportation costs. Unless expressly agreed otherwise, prices are quoted in euros. Packaging shall be charged at cost price and shall only be taken back if the Vendor is obliged to do so by mandatory statutory provisions. Any customs duties, fees, taxes and other public charges shall be paid by the Customer.

(2) If there are more than 4 months between conclusion of the contract and delivery, without the Vendor being responsible for a delay in delivery, the Vendor may change the agreed prices accordingly if cost increases occur after conclusion of the contract, in particular due to collective pay agreements or changes in the price of materials. The Vendor shall be obliged to proceed in the same way in the event of cost reductions. The Vendor shall provide the Customer with evidence of both cost reductions and cost increases as soon as and insofar as they have occurred and shall take them into account in the event of cost increases and cost reductions.

(3) If the Vendor takes the Customer’s change requests into account, the Customer shall bear the resulting additional costs.

(4) Unless otherwise stated, the purchase price is due for payment within 30 days net from receipt of the consideration and receipt of the invoice. The deduction of a discount requires an express written agreement. The place of performance for the payment of the purchase price is the registered office of the Vendor.

(5) Upon expiry of the above payment period, the Customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate; this is currently 9 percentage points above the respective base interest rate in accordance with Section 247 BGB. In addition, a lump sum for damages caused by default in the amount of EUR 40.00 shall be payable. The Vendor reserves the right to claim further damages caused by default, taking into account the lump sum for damages caused by default.

§ 4 Offsetting, right of retention

Offsetting and the claiming of a right of retention on the part of the Customer shall be excluded unless the counterclaim on which the offsetting or the right of retention is based is undisputed or has been legally established. Furthermore, the Customer shall only be authorized to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the Customer’s counter-rights shall remain unaffected, in particular in accordance with § 9 of these GTC.

§ 5 Delivery period, delay in delivery

(1) The specification of a delivery date shall be made at our best discretion upon acceptance of the order. The delivery date is only binding if it is expressly designated as binding.

(2) An agreed delivery period shall be extended appropriately if the Customer delays or fails to cooperate as required or agreed. Furthermore, the period shall not begin to run before all technical questions have been clarified. Changes to the delivered goods initiated by the Customer shall also lead to a reasonable extension of the delivery period.

(3) If the Vendor fails to meet binding delivery deadlines for reasons for which it is not responsible, he shall inform the Customer of this without delay and at the same time notify the Customer of the expected new delivery deadline. If the service is also not available within the new delivery period, the Vendor shall be entitled to terminate the contract in whole or in part; any consideration already paid by the Customer shall be reimbursed immediately. A case of non-availability of the service shall be deemed to be in particular the failure of suppliers to deliver to the Vendor in good time if neither the Vendor nor the supplier is at fault or the Vendor is not obliged to procure in the individual case.

(4) The occurrence of default in delivery shall be determined in accordance with the statutory provisions. In any case, a reminder from the Customer in written or text form within the meaning of Sections 126 (1), 126b BGB is required.

(5) The rights of the Customer pursuant to § 9 of these GTC and the statutory rights of the Customer, in particular in the event of an exclusion of the obligation to perform, in particular in the event of impossibility or unreasonableness of performance, shall remain unaffected.

§ 6 Delivery, transfer of risk, acceptance, default of acceptance

(1) Delivery shall be ex works (Incoterms 2020, “EXW”) of the Vendor, which is also the place of performance. At the request and expense of the Customer, the goods shall be shipped to another destination (sales shipment). Unless otherwise agreed, the Vendor shall be entitled to determine the type of shipment itself, in particular the transport company, shipping route and packaging.

(2) The Vendor is entitled to make partial deliveries if the partial delivery is usable for the Customer at the discretion of the Vendor within the scope of the contractual purpose, and the delivery of the remaining ordered goods is ensured and the Customer does not incur any significant additional expenditure or additional costs as a result. The agreed price remains unaffected by this.

(3) The risk of accidental loss and accidental damage to the goods shall pass to the Customer at the latest when the goods are handed over to the Customer. In the case of sale by shipment, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon handover of the goods to the forwarding agent, carrier or other shipper. If acceptance has been agreed, this shall be the relevant point in time for the transfer of risk. The statutory provisions for the law on contracts for work and services (“Werkvertragsrecht”, Sections 631 – 650 BGB) shall also apply accordingly to an agreed acceptance. If the Customer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(4) If the Customer is in default of acceptance, fails to assist or if the delivery is delayed for other reasons for which the Customer is responsible, the Vendor shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In addition, the Vendor shall be entitled to further statutory claims.

§ 7 Retention of ownership

(1) The Vendor shall retain ownership of the delivered goods (goods subject to retention of ownership) until all payment claims arising from the business relationship with the Customer have been settled in full.

(2) The Customer shall be entitled to resell the goods subject to retention of ownership in the ordinary course of business; however, he hereby assigns to the Vendor all claims in the amount of the final invoice amount (including statutory VAT) of the Vendor’s claim which accrue to the Customer from the resale against his customers or third parties, irrespective of whether the goods subject to retention of ownership have been resold without or after processing. The Vendor accepts this assignment. The Customer shall remain authorized to collect this claim even after the assignment. The Vendor’s authority to collect the claim itself shall remain unaffected by this. However, the Vendor undertakes not to collect the claim as long as the Customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, the Vendor may demand that the Customer informs the Vendor 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. The Customer is not authorized to pledge the reserved goods to third parties or to assign them as security.

(3) If the Customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, the Vendor shall be entitled to terminate the contract in whole in accordance with the statutory provisions and to demand the return of the reserved goods on the basis of the retention of ownership and the cancellation of the contract. If the Customer does not pay the purchase price, the Vendor may only claim these rights if it has previously set the Customer a reasonable deadline for payment without success or if such a deadline can be dispensed with in accordance with the statutory provisions.

(4) The processing, combining or mixing of the reserved goods by the Customer shall always be carried out for the Vendor. If the reserved goods are processed, combined or inseparably mixed with other items not belonging to the Vendor, the Vendor shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount, including statutory VAT) to the other processed, combined or inseparably mixed items at the time of processing, combining or mixing. In all other respects, the same shall apply to the item created by processing, combining or mixing as to the purchased item delivered subject to retention of title.

(5) If the value of all securities existing for the Vendor exceeds the existing claims by more than 10%, the Vendor shall release securities of the Vendor’s choice at the Customer’s request.

(6) The Customer is obliged to treat the reserved goods with care; in particular, he is obliged to insure them adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the Customer must carry this out in good time at its own expense.

(7) In the event of seizures or other interventions by third parties, the Customer shall notify the Vendor immediately in writing so that legal defense measures can be taken. If the third party is not in a position to compensate the Vendor for the judicial and extrajudicial costs of appropriate legal defense measures (in particular legal action pursuant to Section 771 ZPO), the Customer shall be liable to the Vendor for the resulting loss. The Purchaser’s obligation to notify the Vendor shall also apply in the event of the opening of insolvency proceedings against the Customer’s assets and in the event of the filing of an application for such proceedings.

§ 8 Return of goods

Goods can only be returned after consultation. Goods that have no defects are excluded from return.

§ 9 Claims for defects

(1) The Customer’s claims for defects presuppose that he has fulfilled his statutory obligation to inspect and give notice of defects (Section 377 HGB). If a defect is discovered during the inspection or later, the Vendor must notify the Customer of this in writing without delay. If the Customer fails to properly inspect the goods and/or report defects, the Vendor’s liability for the unreported defect shall be excluded.

(2) If the delivered item is defective, the Customer may demand subsequent fulfillment in the form of repair or replacement. The Vendor may refuse the type of subsequent performance chosen by the Customer in accordance with Section 439 (4) BGB. If the Customer does not decide on the form of subsequent performance, the right to choose shall pass to the Vendor on expiry of a 14-day period. The Vendor may make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Customer is entitled to retain a proportionate part of the purchase price.

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

(4) In the case of subsequent performance, the vendor is obliged – in relation to the place of performance of the subsequent performance – to bear all expenses necessary for the purpose of removing the defect, in particular transport, travel, labor and material costs. Insofar as the Customer has incurred expenses within the scope of subsequent performance in accordance with the nature of the purchased item and its respective contractual purpose for dismantling and installation as well as for attaching the purchased item to another item, the Vendor shall be obliged to reimburse the Customer for the expenses required in this respect. However, this only applies if the defect was not yet obvious at that time or was not discovered due to gross negligence on the part of the Customer and if the conditions for fault-based liability for damages are met. If it turns out that the request to remedy the defect was unjustified, the costs shall be reimbursed by the Customer.

(5) Only in urgent cases, for example if operational safety is at risk or to prevent excessive damage, shall the Customer have the right to remedy the defect himself and to demand compensation from the Vendor for the expenses objectively necessary for this purpose. The Customer must inform the Vendor immediately, if possible in advance, of any such self-remedy. There is no right to self-remedy if the Vendor would be entitled under the statutory provisions to refuse corresponding subsequent performance.

(6) If the supplementary performance fails or if a suitable deadline set by the Customer for the supplementary performance expires unsuccessfully or if the setting of a reasonable deadline is dispensable in accordance with the statutory provisions, the Customer may, at its discretion, reduce the purchase price or terminate the contract. The right of termination is excluded if the defect is only insignificant.

(7) Further claims of the Customer, insofar as these do not result from the assumption of a guarantee, shall only exist if they result from these GTC and are otherwise excluded.

(8) Claims for defects shall become limited to 12 months from the transfer of risk of the purchased item. If acceptance has been agreed, the limitation period shall commence upon acceptance. The limitation period in the case of a delivery recourse according to Section 445 b BGB remains unaffected.

§ 10 Other limitations of liability

(1) The Vendor’s liability is – to the extent permitted by law and irrespective of the legal nature of the asserted claim – excluded in full. This exclusion of liability does not apply to the Vendor’s liability arising from a breach of duty for damages resulting from injury to life, limb or health or for liability for other damages based on an intentional or grossly negligent breach of duty and in the case of strict liability prescribed by law, such as the Product Liability Act (“Produkthaftungsgesetz”).

(2) Insofar as the Vendor is not accused of intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.

(3) Insofar as liability for damages against the Vendor is excluded or limited, this shall also apply with regard to the personal liability for damages of the Vendor’s employees, workers, staff, representatives and assistants.

§ 11 Choice of law, place of jurisdiction, salvatory clause

(1) These GTC and the contractual relationship between the Vendor and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of all references to other legal systems and international conventions. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. This also applies insofar as national law refers to the UN Convention on Contracts for the International Sale of Goods.

(2) The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between the Vendor and the Customer shall be that of the Vendor’s registered office. This shall also apply to cross-border disputes. The Vendor shall also be entitled to bring an action before a court which has jurisdiction for the registered office or a branch of the Customer.

(3) If individual provisions of these GTC or the supplements or additional agreements are or become invalid, this shall not affect the validity of the remaining GTC. In this case, the Vendor and the Customer shall be obliged to replace the invalid provisions with valid provisions that come as close as possible to the economic intent of the invalid provisions. The above provision shall also apply accordingly in the event of regulatory gaps.

(4) No side agreements have been made. Amendments and supplements to the GTC and additional agreements must be made in writing in order to be legally effective in accordance with Section 126 (1) BGB. This also applies to a waiver of this form clause, unless a case pursuant to Section 305b BGB prevails.