GENERAL TERMS AND CONDITIONS OF HAKOH GMBH

ARTICLE 1 AREA OF APPLICATION, FORM

(1)These General Terms and Conditions of Sale and Conditions (GTCs) apply to all our business relations with our customers (“Purchasers”). The GTCs shall only apply if the Purchaser is an entrepreneur (Article 14 German Civil Code - BGB), a legal entity under public law or a special fund under public law.

(2) The GTCs apply in particular to contracts on the sale and/or delivery of moveable items (“goods”), regardless of whether we manufacture the goods ourselves or purchase them from suppliers (Articles 433, 650 BGB). Unless otherwise agreed, the GTCs in the version valid at the time of the Customer's order or, in any case, in the version last notified to the Customer in text form, shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.

(3) Our GTCs apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Purchaser shall only become part of the contract if and to the extent that we have explicitly agreed to their validity. This requirement for consent applies in any case, e.g. even if the Purchaser refers to his GTCs in the course of the order and we do not explicitly contradict him.


(4) Individual agreements (e.g. framework delivery contracts, quality assurance agreements) and information in our order confirmation have precedence over the GTCs. In cases of doubt, commerce clauses should be interpreted according to the Incoterms® issued by the International Chamber of Commerce in Paris (ICC), in the version valid when the contract is concluded.


(5) Legally relevant declaration and notifications on the part of the Purchaser with respect to the contract (e.g., setting deadlines, defect reports, withdrawal or reduction) must be made in writing. The written form within the meaning of these GTCs includes the written and text form (e.g., letter, email, fax). Statutory formal requirements and other proof, particularly in the case of doubts about the legitimisation of the declaring party, shall remain unaffected.


(6) References to the applicability of statutory provisions are for clarification purposes only. Even without such clarification, therefore, the statutory regulations apply, insofar as they are not directly amended or explicitly excluded in these GTCs.

ARTICLE 2 CONCLUDING A CONTRACT
 

(1) Our offers are subject to change and non-binding. This is also the case if we have sent the Purchaser catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - including in electronic form - to which we retain the ownership rights and copyright.


(2) The order of the goods by the Purchaser is considered a binding contract offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 5 days of its receipt by us.


(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Purchaser.

ARTICLE 3 DELIVERY DEADLINE AND DELAYED DELIVERY

(1) The delivery period is agreed individually or stated by us upon acceptance of the order.


(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Purchaser of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already paid by the Purchaser. A case of non-availability of performance is, for example, the untimely self-delivery by our supplier if we have concluded a congruent hedging transaction, other disruptions to the supply chain caused by force majeure or where we are not obliged to procure in the individual case.


(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Purchaser is required. If we are in default of delivery, the Purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, however, in total not more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the Purchaser has not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.


(4) The rights of the Purchaser according to Article 8 of these GTCs and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.

ARTICLE 4 DELIVERY, TRANSFER OF RISK, ACCEPTANCE, DELAYED ACCEPTANCE

(1) The delivery shall be straight from the warehouse, which is also the place of performance for the delivery and any subsequent performance. At the request and expense of the Purchaser, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.


(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser at the latest upon handover. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss or accidental deterioration of the goods and the risk of delay shall pass to the carrier, freight forwarder or other person or institution responsible for the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance is the same if the Purchaser is in default of acceptance.


(3) If the Purchaser is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. additional delivery and storage costs).

(4) In addition, we charge a lump-sum compensation of EUR 250 per calendar day for this starting on the delivery date or - if there is no delivery date - on notification that the goods are ready for shipping.


(5) The proof of a higher damage and our legal claims (in particular compensation of additional expenses, reasonable compensation, notice) remain unaffected; however, the lump sum is to be credited against further monetary claims. The Purchaser is entitled to prove that we have not suffered any damage or that the damage is considerably less than the aforementioned amount.

5 PRICES AND PAYMENT TERMS

(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.

(2) (2) In the case of a sale by delivery to a place other than the place of performance (Article 4 para. 1), the Purchaser shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Purchaser. If we do not invoice the actual transport costs incurred in an individual case, a flat-rate price for transport costs (only transport insurance) according to the following list shall be deemed to have been agreed for Germany.

• Parcel up to 2 kg up to 60 x 30 x 15 cm EUR 7.00 plus VAT
• Parcel up to 5 kg up to 120 x 60 x 60 cm EUR 9.00 plus VAT
• Parcel up to 10 kg up to 120 x 60 x 60 cm EUR 12.00 plus VAT
• Parcel up to 31.5 kg up to 120 x 60 x 60 cm EUR 20.00 plus VAT

For items over 31.5 kg and consignments to other countries outside Germany, only the costs cited in the order confirmation apply.

Any customs duties, fees, taxes and other public charges shall be borne by the Purchaser.


(3) The purchase price is due and payable within 14 days of the date of invoice and delivery or acceptance of the goods. We are, however, entitled at any time, also within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We declare such reservation at the latest with the order confirmation.


(4) Upon expiry of the aforementioned payment deadline, the Purchaser shall be in default. The purchase price shall bear interest at the applicable statutory default interest rate during the period of default. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial interest on arrears (Article 353 HGB) shall remain unaffected.

(5) The Purchaser shall only be entitled to rights of offset or retention insofar as his claim is legally established or undisputed. In the case of faults in the delivery, the Purchaser’s counter-rights, in particular according to Article 7 para. 6 sentence of these GTCs, shall remain unaffected.


(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardised by the Purchaser's inability to perform (e.g. by an application for the institution of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (Article 321 BGB). In the case of contracts for the manufacture of unreasonable items (custom-made products) we may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
 

ARTICLE 6 RETENTION OF TITLE

(1) We retain title to the goods sold until payment in full of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).


(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Purchaser shall inform us in writing without undue delay if an application for instituting insolvency proceedings has been made or if third parties have access to the goods belonging to us (e.g. attachments).


(3) In case of breach of contract by the Purchaser, in particular in case of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. The demand for surrender does not also contain the exercise of the right of renunciation; much rather, we are entitled only to demand surrender of the goods and reserve the right of renunciation. If the Purchaser fails to pay the purchase price due, we may only assert these rights if we have previously set the Purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.


(4) The Purchaser is authorised, until revocation according to (c) below, to sell on and/or process the goods subject to the right of retention in the ordinary course of business. In this case, the following provisions shall apply as a supplement.


a) The right to retention shall extend to the products manufactured by processing, mixing or combining our goods to their full value, whereby we shall be deemed to be the manufacturer. If the ownership rights of third parties remain in place in the case of processing, mixing or combining with third party goods, we shall acquire joint ownership in the proportion of the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the manufactured product as to the goods supplied with a right of retention.


b) The Purchaser hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in total or the amount of our joint ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the Purchaser according to paragraph 2 also apply in consideration of the assigned claims.


c) The Purchaser shall remain entitled to collect the claim in addition to us.  We undertake not to collect the claim as long as the Purchaser meets his payment obligations towards us, there is no deficiency in his ability to perform and we do not asset the right of retention by exercising a right according to para. 3. If this is the case, however, we may demand that the Purchaser inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Moreover, in such a case we are entitled to revoke the Purchaser’s authorisation to sell and process the goods subject to the right of retention.


d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the Purchaser.

ARTICLE 7 CLAIMS FOR DEFECTS

(1) The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated in the following. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse pursuant to Articles 478, 445a, 445b or Articles 445c, 327 para. 5, 327u BGB) shall remain unaffected, unless an equivalent compensation has been agreed within the context of a quality assurance agreement.


(2) The basis of our liability for defects is above all the agreement reached on the quality and the intended use of the goods (including accessories and instructions). All product descriptions and manufacturers’ information that are the subject of the individual agreement are or have been published by us (in particular in catalogues or on our website) when the agreement is concluded are quality agreement within this meaning . Insofar as the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect exists or not (Article 434 para. 3 BGB). Public comments by the manufacturer or on his behalf in particular in advertising or on the label of the goods shall therefore have precedence over comments by other third parties.


(3) For goods with digital elements or other digital content, we shall owe provision and, where applicable, an update of the digital content only if this directly results from a quality agreement according to para. 2. We accept no liability for public comments made by the manufacturer and other third parties.

4) In principle, we shall not be liable for defects that the Purchaser is aware of when the agreement is concluded or has no knowledge of due to gross negligence (Article 442 BGB). Furthermore, the Purchaser's claims for defects presuppose that he has complied with his statutory obligations to examine the goods and to give notice of defects (Articles 377, 381 German Commercial Code - HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must take place immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we shall be notified thereof in writing without delay. The Supplier shall be notified in writing within 5 working days of delivery and during inspection of obvious defects and of defects that are not obviously recognisable within the same period from the time of discovery. If the Purchaser fails to carry out a proper inspection and/or to give notice of a defect, our liability for the defect which was not notified in time or not properly notified shall be excluded in accordance with the statutory provisions. In the case of goods intended for incorporation, attachment or installation, this shall also apply if the defect became apparent as a result of the infringement of these obligations only after the processing in question; in this case, in particular, the Purchaser shall not be entitled to reimbursement of the relevant costs (“dismantling and installation costs”).


(5) If the supplied item is defective, we can initially choose whether our subsequent performance is by remedying the defect (rectification) or by supplying a defect-free item (replacement). If our choice of subsequent performance is unreasonable to the Purchaser in an individual case, he may refuse it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.

6) We are entitled to make any subsequent performance owed  dependent on the Purchaser paying the purchase price due. However, the Purchaser is entitled to retain an appropriate part of the purchase price, commensurate with the defect.


(7) The Purchaser shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of replacement, the Purchaser must return the defective item to us at our request under the statutory provisions; however, the Purchaser does not have an entitlement to return. Subsequent performance does not include the dismantling, removal or uninstallation of the defective item or the incorporation, attachment or installation of a fault-free item if we were not originally obligated to these services; the Purchaser shall not be entitled to reimbursement of the relevant costs (“dismantling and installation costs”).

ARTICLE 8 OTHER LIABILITY

(1) Insofar as nothing to the contrary arises from these GTCs including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.


(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence we shall be liable, subject to statutory liability limitations (e.g. diligence in own affairs; insignificant breach of duty), only
(a) for damages arising from injury to life, body or health
(b) for damage resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place, and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.


(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as in the event of breaches of duty by persons (also in their favour) for which we are responsible in accordance with statutory provisions. They do not apply if a defect was fraudulently concealed or a guarantee for the quality of the goods was assumed and for claims of the buyer under the German Product Liability Act.


 (4) The Purchaser may only withdraw from or cancel the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Purchaser (in particular according to Articles 650, 648 BGB) is excluded. Otherwise, the legal requirements and legal consequences apply.

ARTICLE 9 LIMITATION

(1) Notwithstanding Article 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from the date of delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.


(2) (2) if the goods are a building or an item that, if used in the standard way, is used for a building and causes its defectiveness (building material), the limitation period according to the statutory regulation is 5 years from delivery (Article 438 para . 1 No. 2 BGB). Other statutory special regulations on limitation shall remain unaffected (in particular Article 438 para. 1 No. 1, para. 3, Articles 444, 445b BGB).


(3) (3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the goods, unless the application of the regular statutory limitation period (Articles 195, 199 BGB) would result in a shorter limitation period in individual cases. The Purchaser’s claims for damages according to Article 8 para. 2 sentence 1 and sentence 2 (a) and according to the German Product Liability Act shall expire only according to the statutory limitation periods.

ARTICLE 10 CHOICE OF LAW AND PLACE OF JURISDICTION

(1) These GTCs and the contractual relations between us and the Purchaser shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.


(2) If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - including international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business in Hamburg. The same applies if the Purchaser is an entrepreneur within the meaning of Article 14 BGB. However, we shall also always be entitled to bring an action at the place of fulfilment of the delivery obligation according to these GTCs or a priority individual agreement or at the Purchaser’s general place of jurisdiction. Statutory regulations of prime importance, in particular concerning exclusive jurisdiction, shall remain unaffected.