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General Terms and Conditions flextos GmbH &
General Terms and Conditions of Purchase flextos GmbH

Our following contract conditions shall apply to all our supplies and services to entrepreneurs (i.e. to any present and future business relations). Any diverging, conflicting, and or supplementary general terms and conditions of the customer shall not become an integral part of the contract, even if acknowledged, unless these terms and conditions are expressly agreed to in writing.

§1 Conclusion of the Contract – Condition of the Goods

Our offers are without engagement and obligation. By placing an order the customer engagingly declares his intention to purchase the goods ordered. The seller shall accept the order within two (2) weeks upon receipt of order by issuing a written order confirmation. Thus, the contract shall come into effect upon receipt of the order confirmation by the customer.

The customer’s order, our written order confirmation, present General Terms and Conditions of flextos GmbH, the contractual agreements as well as our quotation shall be material to the contents of the contract. No ancillary verbal agreements have been made.

Any declarations on the condition and the durability of the goods by means of which we grant the customer additional rights – irrespective of the customer’s statutory claims – shall only constitute a legal warranty arising from the contractual agreement with the customer, pursuant to section 443 of the German Civil Code, if we expressly identify them as such. All product information contained in our product brochures as well as in any of our promotion materials is for descriptive purposes only and not legally binding; the prices specified in the price lists are subject to change without notice.

§2 Delivery – Passing of Risk

Our deliveries shall be effected ex works or ex stock pursuant to the INCOTERMS 2000 unless otherwise agreed. At the customer’s request, we shall dispatch the goods to the customer’s premises or to an alternative location agreed with the customer. The shipping costs shall be borne by the customer. Partial deliveries shall be admissible insofar as they are acceptable to the customer.

The risk of accidental loss of and/or damage to the goods shall pass to the customer at the point in time at which we have handed over the goods to a forwarding agent, carrier, or any other person or institution commissioned to carry out the shipping at the latest, however, when the goods leave our factory or warehouse. In the event the goods are ready for dispatch and shipping is delayed for reasons beyond our control, the risk shall pass to the customer upon receipt of the dispatch advice. This shall also apply if “carriage prepaid” has been agreed. We shall not be obligated to contract transport insurance unless this has been expressly agreed with the customer. In this case the insurance costs shall be borne by the customer.

§3 Delivery Deadlines – Impediments to Delivery

Adherence to the delivery deadlines stipulated can only be required if the latter have been agreed on by the parties hereto as fixed dates, and have also been designated as such. In any event, adherence to delivery dates implies that all documentation to be supplied by the customer, necessary approvals and clearances have been received in good time, especially of plans, as well as adherence to the agreed terms of payment and any other obligations on the part of the customer. In case these requirements are not fulfilled, or only fulfilled in part, or not fulfilled in good time, the delivery deadlines shall be extended in an adequate manner; this shall not apply if the delay is caused by our fault.

Any damage due to acts of God (unforeseen circumstances and incidents beyond our control, which could not have been avoided with the due care of a prudent businessman either, e.g. labour disputes, war, fire, transportation obstacles, shortage of raw materials, official sanctions) may, for their duration and within the scope of their impact, suspend our delivery commitment, even if delivery is already delayed.

Inasmuch as we have concluded a congruent hedging transaction with our own supplier, the delivery dates specified by us shall be subject to correct and punctual supply to ourselves.

§4 Right of Withdrawal

In the event of acts of God and the conclusion of a congruent hedging transaction in due time, we shall be entitled to withdraw from the contract provided we have informed the customer on the occurrence of the act of God, or on delivery not being made to us in good time, or in proper form, and reimburse the customer without delay for any payments/consideration effected.

§5 Prices and Payments

Our prices are quoted net, ex works, including packaging, freight, postage, and transport insurance.

Insofar as we have undertaken to render additional services aside from the delivery of the goods, e.g. assembly, installation, connection, functional testing, start-up, trial run and/or training of staff, the customer shall, in addition to the agreed price for the goods, bear all expenses arising for these services, such as and in particular all relevant labour costs on a time and material basis at customary hourly rates, travelling expenses (travel and accommodation expenses) as well as costs charged for the transportation of tools and personal luggage.

We shall reserve the right to alter our prices accordingly if – after conclusion of the contract – our production costs and shipping charges increase in consequence of circumstances beyond our control (e.g. increases in tariffs, material costs, taxes etc.), and we inform the customer on the particular price increase in good time prior to delivery.

Our invoices are due for payment immediately upon receipt. As a calendrical term for payment pursuant to section 286(2)(1) of the German Civil Code, the parties agree on the obligation to execute payment not later than fourteen (14) days upon receipt of invoice. In the event of the customer’s default of payment, we shall be entitled to receive default interest at a rate of eight (8) percentage points above the base rate. The customer may only offset payment with undisputed or legally established claims, and thus only assert the right of retention on account of such claims. The assignment of any claim we are entitled to, which does not constitute a monetary claim, shall be subject to our approval to come into force.

§6 Scope of Supplies and Services – Cooperation Obligation during   Assembly

Our services shall be based on the contents of the services agreed to. Our supplies/services do not include the delivery of programmatic software unless we have expressly agreed to the delivery of the software with the customer. The delivery of the software may either be effected together with the delivery of our goods, or separately. Any enhancements and/or redevelopments of the software supplied shall not be included in our delivery commitment.

The customer shall ensure that any services and preliminary work to be rendered by him – including the provision of any aids/facilities and assistants agreed on – are carried out in due form and good time, before we provide supplies and services at customer site, or any other location. In case the customer fails to fulfil his cooperation obligation, thus resulting in a delivery delay of our supplies and services, the customer shall be liable to bear the costs caused by the delay as well as any additional travel expenses/labour cost incurred by us/assembly personnel in a reasonable scope. Any assembly and installation costs shall be borne by the customer.

Insofar as we require acceptance in proof of delivery following manufacture, the customer is required to render this proof within two weeks. The acceptance certificate shall be issued by us. In case the customer fails to effect acceptance within the afore-mentioned two-week period, it shall be deemed to have been carried out. Acceptance shall also be deemed to have been effected if the items have been put into operation upon completion of an agreed trial run, if applicable.

§7 Rights and Duties of the Customer in the Event of Defects

The customer shall check the goods for defects without delay. The customer shall further advise us without delay of any apparent/noticeable defects, however, not later than within seven (7) working days. The period for examination and notification shall commence upon delivery, however, at the latest upon conclusion of a trial run. The customer shall advise us without delay of any latent defects immediately upon detection. In the event of the customer’s failure to check the goods and advise of any defects without delay, the customer shall forfeit all rights directly and/or indirectly associated with the defect.

In case the goods are defective, the customer shall initially only be entitled to assert the right to supplementary performance, unless supplementary performance is unacceptable to the customer. The supplier shall have the option between subsequent improvement or supplementary performance. The customer shall grant the supplier an adequate period to remedy the defect, or else any warranty claims shall be forfeited. Should supplementary performance fail twice, or should it be denied by us, the customer shall either be entitled to assert the right to a reasonable reduction in price or to withdrawal. In case our expenses increase in the event of supplementary performance due to the fact that the goods have been brought to a location other than the customer’s principal office, or other than the intended use, particularly as for export transactions, the customer shall compensate us in the amount of the increased expense. Any limitations of liability as stipulated in the following paragraphs shall apply to all claims for damages.

In case only part of the goods sold is, or only individual parts of an item sold are defective, any potential right of withdrawal on the part of the customer shall be restricted to the individual defective goods or the defective part only. This shall not apply if the individual defective goods or the defective part cannot be separated from the remaining goods or parts without causing damage or loss of functioning, or if this is unacceptable to the customer. The customer shall explain the reasons for mentioned unacceptability accordingly.

Insofar as we specially manufacture our goods as per the customer’s individual requirements, the customer may only terminate the contract for good reason up to the completion of the production of the goods. We shall not assume any responsibility for the correctness of cost estimates this contract bases on. The provisions of section 651 of the German Civil Code shall apply for the rest.

§8 Limitation of Liability – Exclusion of Withdrawal

The user guide/manual provided by us shall be strictly observed by the customer. We shall not assume any legal liability for the failure to adhere to the user guide/manual. Any warranty adjustments shall be denied in case of inappropriate handling and/or insufficient maintenance, i.e. contrary to the instructions provided in the user guide/manual. Warranty adjustments shall further be rejected if repair work and/or adaptations/adjustments are performed by other persons/companies than us, or any of our contractors.

We shall in any event assume unlimited legal liability for any fatal, physical, and/or health-related damage/injury as well as pursuant to the German Integral Product Liability Act irrespective of default. In case of any infringement of integral contractual obligations, we shall in principle be liable without limitation for any damage arising from malicious intent or gross negligence; in the event of slight negligence, our liability shall be restricted to the compensation of predictable, contract coherent damage.

In all other cases, any claims against us for compensation of damage, regardless of legal grounds, shall be excluded unless the provisions of the contract have either been infringed by us, our legal representatives, or our assistants by intent or gross negligence. In the event of gross negligence our liability shall be limited to predictable, contract coherent damage. Any rights on the part of the customer to dissolve the contract due to contractual infringement beyond our control, and not consisting of a defect in the goods, shall be excluded. To the extent that our liability is excluded or restricted pursuant to the foregoing paragraphs, this shall also apply to the liability of our assistants and performing agents.

§9 Retention of Title

Any merchandise delivered by us shall remain our sole property pending the full payment of the purchase price. In case third parties lay claim to the retained goods, the customer shall point out our proprietorship and notify us without any delay. In the event of default of payment on the part of the customer, we shall be entitled to request the return of the retained goods, at the customer’s expense once we have withdrawn from the contract. If the customer is an entrepreneur pursuant to section 14 of the German Civil Code, subsections 5 to 10 shall apply as well. Any merchandise delivered by us shall remain our sole property pending the fulfillment of any claims including future claims and outstanding balance requests resulting from the business relationship. The customer shall not be entitled to pledge any merchandise delivered, or assign it as security, or liquidate it in any kind of way, unless the acquisition has precisely been made for the purpose of resale. In this case the customer shall revocably be entitled to resell the retained goods within the scope of adequate and orderly operations in his own name, as long as he is not in arrears with his payment obligations to us. In the case of processing or integration, we shall acquire co-ownership, whereby our share is determined by the invoice value (our delivery price including VAT, without deduction of any cash discount); insofar as the customer, by act of law, acquires sole proprietorship, he shall proportionately assign to us co-ownership, and keep the merchandise in safe custody for us free of charge. Any processing shall be carried out for us.

By way of security, the customer shall hereby already assign to us in the amount of the invoice value any accounts receivable in regard to the retained goods arising from the resale or any other legal grounds (e.g. insurance, unlawful acts), including all outstanding balance claims of current account. This shall also apply in case – pursuant to the foregoing restrictions – a resale was not admissible. We shall accept the assignment. If we only share co-ownership of the retained goods, the advance assignment shall be limited to the percentage of the claim equating to the percentage of our co-ownership based on the invoice value.

The customer shall be revocably entitled to collect any claims assigned to us in his own name and for our account. This collection authorization may be revoked when the customer does not duly perform his payment obligations. In case of a justified revocation, the customer or his legal assignee or liquidator shall be required, upon request, to disclose any assigned claims and all associated debtors – including their addresses –, provide all details required for collection, deliver all associated documentation, and notify the debtors of the assignment without delay. We shall release the aforementioned securities at the customer’s request, at our own option, insofar as their realizable value noticeably exceeds the secured claims by more than 10%. As for the retained goods the estimated value shall be deemed realizable; as for claims assigned by way of security, the nominal value shall be taken, less a deduction of one third each time. In case any third parties lay claim to the retained goods, the customer shall, additionally and without any delay, take action pursuant to section 771 of the German Code of Civil Procedure as a designated representative (so-called third party proceedings).

§10 Intellectual Property Rights and Copyrights

We shall reserve our unrestricted ownership as well as our intellectual and industrial property rights with reference to all services provided and/or made available by us, particularly programs, drawings, and any other documentation developed by us. In case the contract with us does not come about, the drawings, the documentation as well as any other work/services already rendered shall be returned to us without any delay. Any documentation as well as other work/services rendered may only be made accessible to third parties with our consent.

§11 Period of Limitation

Any claims raised by the customer due to faults with the goods shall become time-barred after a period of one (1) year for enterprises, two (2) years for consumers, or one thousand (1000) hours of operation upon delivery of the goods.

Any other contractual claims by the customer resulting from a breach of duty shall become time-barred after one (1) year. Any claims arising from a warranty shall also become time-barred after one (1) year if we have issued a warranty not providing for any conditions to the contrary. Any rights of the customer to dissolve the contract as a result of a breach of duty we are responsible for, which does not consist of a defect, the statute of limitations shall apply accordingly. Any other customer claims shall be governed by the statute of limitations. Our claims against the customer shall become time-barred in accordance with the statutory limitations as well.

§12 Affirmative Action

We do not practise any discrimination based on age, race, colour, sex, or ethnic origin in any of our employment relationships.

§13 Data Protection

flextos GmbH will record and process all personal information and data acquired in the course of business initiation and/or further business activities exclusively for the purpose of providing customer service and support. flextos GmbH assures not to disclose any of the above-mentioned information and data to third parties – except to esmo AG, the parent company, or its subsidiaries, for the purpose of any related order processing activities. flextos GmbH, or any another company of the esmo AG group shall disclose recorded personal information/data on request, and – if applicable – also arrange for the relevant personal information/data to be amended, deleted and/or blocked upon application (sections 28 and 29 of the German Federal Data Protection Act).

§14 Applicable Law – Place of Performance – Place of Jurisdiction

This contract shall exclusively be subject to German law. The place of performance, including customer payments, shall be Rosenheim. Insofar as the customer is a businessman the Rosenheim County Court or the Traunstein District Court – depending on their competence – shall have local and subject matter jurisdiction for any disputes arising – directly or indirectly – from the contractual relationship. We shall, however, also be entitled to sue the customer at the customer’s general place of jurisdiction. In the case of transboundary deliveries, the exclusive place of jurisdiction for all disputes arising from the contractual relationship shall be the Rosenheim County Court or the Traunstein District Court, Federal Republic of Germany (Article 17 “EC Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters” and/or Article 23 “Council Regulation on Jurisdiction, Recognition, and Enforcement of Judgments in Civil and Commercial Matters”), depending on their competence. We shall reserve the right to also appeal to any other court having jurisdiction on the basis of the two afore-mentioned articles.

In addition to the aforementioned terms and conditions, German law – including the provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UNCISG) – shall apply to any privity of contract.

We only commit ourselves to the German/English original texts of our contracts, agreements, and documentations (Assembly and Operation Manuals, Operating Instructions et al.). In any case of doubt and/or legal dispute the German/English original text shall prevail – translations shall thus be non-committal insofar as they deviate from the German/English original text.

General Terms and Conditions of Purchase flextos GmbH

 

Contents:

1. General

2. Delivery Date and Place of Performance

3. Shipping and Pricing

4. Invoice and Payment – Non-Assignment Clause

5. Warranty Claims

6. Duty to Notify and Exercise Due Diligence

7. Provision of Material/Equipment

8. Non-Disclosure

9. Spare Parts and Supply Readiness

10. Place of Jurisdiction and Applicable Law

 

 

1. General

1.1 Any terms and conditions of the supplier deviating from or supplementing present General Terms and Conditions of Purchase shall be without any obligation for the purchaser, even though the purchaser might not object, or the supplier might declare to deliver on his terms only.

1.2 Any contractual agreements, modifications and/or supplements as well as purchase orders and order acceptances shall be in writing. Verbal subsidiary agreements upon contract conclusion shall only be effective if the purchaser expressly agrees to these in writing. Likewise applies to contract modifications after contract conclusion.

1.3 In the event that the supplier does not accept the purchase order within a period of fourteen (14) days, the purchaser shall be authorized to cancel the order prior to receiving the supplier’s acceptance.

1.4 The complete assignment or subcontracting of ordered goods and/or services to third parties shall be subject to the purchaser’s written approval.

1.5 Any expenses for the insurance of the goods, in particular forwarding insurance, shall not be assumed by the purchaser.

 

2. Delivery Date and Place of Performance

2.1 The agreed delivery date shall be binding. Preliminary deliveries shall be subject to the purchaser’s explicit approval. The receipt of the purchaser’s shipping address shall be the decisive criterion for punctual delivery not including assembly or installation. For punctual delivery including assembly or installation the readiness of the goods for acceptance shall be the decisive criterion.

2.2 In case the supplier defaults, the purchaser shall be entitled to claim liquidated damages amounting to 0.5% of the contract value per commenced week, however, 5% of the contract value at a maximum. The purchaser may claim liquidated damages, if he reserves the right to do so at the latest in or before the end of one (1) month upon acceptance of the last contractual delivery and/or service.

2.3 Place of performance for any deliveries and/or services of the supplier will be the shipping address indicated in the order. Unless a shipping address is specified, and the place of performance does not ensue from the nature of the contractual obligation, the postal address of the purchaser shall be considered place of performance.

 

3. Shipping and Pricing

3.1 Any deliverable items shall be adequately packaged and dispatched. Any relevant and applicable provisions on packaging and dispatch shall be complied with. Delivery notes or packaging slips shall be included in all deliveries. Further, order numbers as well as any marking/labelling requested and specified by the purchaser shall be included in all documents. The purchaser shall be provided a dispatch note on the date of dispatch at the latest. The supplier shall be liable for any expenses charged to the purchaser as a result of the supplier’s non-compliance with the aforementioned provisions.

3.2 The prices shall apply free place of performance.

 

4. Invoice and Payment – Non-Assignment Clause

4.1 The invoice has to contain the order number as well as all markings/labellings requested and specified in the order.

4.2 Payment shall be effected in compliance with the terms stipulated in the order. The deduction of prompt payment discounts shall be admissible even in cases of set-off and/or retention due to defects.

4.3 The supplier shall not be authorized to assign his claims against the purchaser without the written approval of the latter, or to have his claims collected by third parties; this, however, shall not apply if an extended reservation of title by the supplier has effectively been agreed.

 

5. Warranty Claims

The legal provisions shall apply.

 

6. Duty to Notify und Exercise Due Diligence

6.1 If the purchaser has provided information on the purpose of the goods/services to the supplier, or if this purpose is identifiable for the supplier without any express reference of the purchaser, the supplier shall be obligated to notify the purchaser without delay in case the goods/services of the supplier are not qualified to fulfil quoted purpose.

6.2 Any circumstances putting the adherence to agreed delivery dates at a risk shall be communicated to the purchaser immediately to define further procedures.

6.3 The supplier shall notify the purchaser immediately and in writing on any changes in the composition of processed materials or in the construction of goods/services of the kind provided to the purchaser so far. These changes require the purchaser’s written approval.

6.4 It shall be the supplier’s responsibility to ensure that his goods/services meet the standards of all relevant and applicable environmental, accident prevention, and occupational health and safety rules and regulations, all technical and safety requirements as well as all legal requirements in force in the Federal Republic of Germany. It shall further be the supplier’s obligation to point out to the purchaser any specific, not commonly known handling and/or disposal requirements for each delivery.

6.5 Any safety relevant defects, subsequently discovered in the course of production monitoring processes, shall be brought to the attention of the purchaser even after expiration of the warranty period unsolicitedly.

 

7. Provision of Material/Equipment

7.1 Materials/equipment of any kind the purchaser has provided to the supplier shall remain the purchaser’s property. They may only be used for the provision of the goods/services ordered.

7.2 The supplier shall be committed to perform required maintenance and/or inspection services, if required, at his expense as well as to sufficiently insure the materials/equipment left/passed to him, and to render proof to the purchaser upon his request.

7.3 Insofar as materials/equipment provided by the purchaser are/is processed or reshaped to a new moveable object, the purchaser shall be considered manufacturer. In case of a connection or an inseparable intermixture with other objects the purchaser shall acquire co-ownership in the new object in the relation and to the extent of the value the objects had at the time of the connection/intermixture. In the event such connection/intermixture is performed in such way that the supplier’s objects can be considered the principal object, it shall be deemed to have been agreed that the supplier proportionately transfers co-ownership to the purchaser, with the supplier keeping the co-owned object in safe custody on behalf of the purchaser.

 

8. Non-Disclosure

8.1 The supplier shall commit not to disclose any commonly unknown commercial and/or technical information and documentation coming to his attention in the course of the business relationship, and to only use this information/documentation to produce/render the ordered goods/services. Subcontractors, if there are any, shall be committed to maintain discretion and confidentiality likewise.

8.2 For references or publications the supplier shall only be entitled to quote the purchaser’s company and/or trade mark name(s), if the latter has furnished written approval beforehand.

 

9. Spare Parts and Supply Readiness

9.1 The supplier shall be obligated to deliver spare parts for the period of common technical usage, however, at least ten (10) years after the last delivery of a delivery item at adequate terms.

9.2 In the event the supplier discontinues the delivery of spare parts upon expiration of or during the term quoted in paragraph 9.1, the purchaser shall be offered an opportunity to place a final order.

 

10. Place of Jurisdiction and Applicable Law

10.1 Insofar as the supplier is a businessman the exclusive place of jurisdiction shall be Rosenheim – this applies to check and bill transactions as well. Rosenheim shall also be the place of jurisdiction if the supplier, at the time of the initiation of legal proceedings, does not have his general place of jurisdiction in the Federal Republic of Germany. However, the purchaser shall be authorized to appeal to any legally competent court.

10.2 The law of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention for the International Sale of Goods of 11 April 1980 (UNCISG) shall not be applicable.

10.3 We only commit ourselves to the German/English original texts of our contracts, agreements, and documentations (Assembly and Operation Manuals, Operating Instructions et al.). In any case of doubt and/or legal dispute the German/English original text shall prevail – translations shall thus be non-committal insofar as they deviate from the German/English original text.