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RAZIOL Zibulla & Sohn GmbH

General Terms and Conditions

 § 1 - Validity, General

1. These delivery and payment conditions apply for all our deliveries and performances to companies within the meaning of Article 14 of the German Civil Code.
2. Different conditions and agreements are only binding if they are accepted by us in writing. They will not become part of the contract through our silence or delivery.
3. The conditions also apply to current and future business relations.

§ 2 - Offer, Documents of Offer, Conclusion of Contract

1. Our offers are binding if we give them in writing and without reservation.
2. We can accept orders within 4 weeks of receipt of the order, while the content of the orders will become binding once they are confirmed by us in writing or we fulfil them by sending the goods.
3. We only guarantee stock for orders on call, if we have committed to this in writing. Should orders on call be agreed upon, delivery of the quantities indicated must be accepted, otherwise we are entitled to demand the contractual partner, within a deadline of 4 weeks, to take up the delivery and, after elapse of this period, to withdraw from the contract and to demand the agreed upon remuneration, subject to deduction for expenses saved.
4. We reserve ownership and copyrights of illustrations, drawings, calculations and other documents. They are not allowed to be made accessible to third parties. This applies particularly for any written documentation that is marked as “confidential”. Prior to transfer to third parties, the principal requires our express written agreement.

§ 3 - Payment, Prices, Set-off

1. In the absence of any other agreement, our prices apply excluding packing, loading and unloading, which are to be billed separately. All quoted prices exclude the value added tax. We reserve the right to raise prices accordingly, should costs increases result – especially from labour agreements or increased prices of materials – after entering into the contact. We will prove any such cost increases upon request.
2. If a price agreement has not been reached, calculation of the price is done according to the price effective on the day of delivery.
3. In the absence of any agreement, the purchase price is payable without deduction within 30 days of the invoice date.
4. Discount requires a separate written agreement.
5. In case of default of payment, we are entitled to payment of a flat-rate amount of €40. This also applies if the claim relating to default of payment involves an instalment payment or other deferred payment.
Moreover, in the case of default of payment, we are entitled to charge default interest equivalent to the borrowing costs incurred by us, but at least 9 percentage points above the respective basic interest rate, whereby the right to assert a claim for further damages is expressly reserved. The flat rate pursuant to the first sentence shall be charged as a default damages liability, insofar as the damages are substantiated in costs of legal action.
6. The assertion of a lien from an earlier or other transaction of the ongoing business relationship is not possible; offsetting with counter-claims is only possible to the extent that these are not disputed or established as final and absolute.

§ 4 - Delivery Time, Dates, Deadlines

1. Dates and delivery times are only binding to the extent that they are offered or confirmed by us in writing. This also applies to call dates. Compliance with the schedule requires the timely performance of any duties falling to the principal, otherwise the agreed deadlines are to be extended accordingly.
2. Industrial action or unforeseen, extraordinary events, such as political measures, traffic disruptions or other events beyond our control are not attributable to us, and exempt us completely from our obligation to deliver for the duration of their effects.
3. Should we fall into delay for reasons that we are responsible for, liability for damages in the case of ordinary negligence is precluded. Should we delay delivery due to gross negligence or intentional conduct, the principal is entitled to lump-sum compensation for delay amounting to 0.5% of the value of the delivery, up to a maximum of 5% of the value for each full week of delay.
If the principal grants us a reasonable extension to the original term with a warning of refusal after we are already in default, he shall be entitled to withdraw from the contract after the expiration of this deadline without result. The principal is only entitled to claim for damages due to non-performance to the amount of the foreseeable damage if the delay is attributable to wilful intent or gross negligence. Damage liability is otherwise limited to 50% of the actual damage incurred.

§ 5 - Transfer of Risk

1. Provided not otherwise agreed, delivery is agreed direct from the factory. Shipping is at the cost and risk of the principal. If the principal wishes,
delivery will be covered by transport insurance. Any such resulting costs are to be borne by the principal.
2. If acceptance is required, this is crucial for the transfer of risk. It must be carried out promptly on the delivery date or alternatively after our notification of readiness for acceptance.
In the event of delay in acceptance, due to circumstances for which we are not responsible, risk is transferred to the principal on the day of notification of readiness for acceptance.
3. The principal is entitled to return transport packaging to us at the place of delivery of the goods.
The right of return exists if the transport packaging is provided immediately after transfer of the goods or in the event of subsequent delivery.
For the transport of the packaging, a fee amounting to 0.5% of the value of the goods is charged. The fee is charged together with the next delivery or separately at our discretion. The right of the principal to bring transport packaging at his own cost to his place of business is not affected. Return to us may only take place during our business hours. The returned transport packaging must be returned clean, free of foreign materials and sorted according to the type of packaging. Otherwise we are entitled to demand from the principal costs incurred for the disposal.

§ 6 - Notification of Defects, Guarantee

1. The obligations of §§ 377, 381 para. II of the HGB (German Commercial Code) apply with the proviso that the principal notify in writing, within 5 working days after delivery and in any event before processing or installation, all known defects, shortages and incorrect delivery. Transport damage must be reported immediately to the seller in writing. The principal is to fulfil the requisite formalities owed to the carrier for deliveries by rail with short and long distance freight transport vehicles or other means of transportation. No objection may be made to typical usage and shrinkage.
2. a) In the event of timely and justifiable notification of defects of faulty goods within the meaning of § 434 of the German Civil Code, the principal is, with the exclusion of any claim to damages, entitled to statutory rights of guarantee. Quality agreements are to be explicitly labelled as such. A reference to DIN standards generally includes the more detailed identification of goods and does not constitute a guarantee by us, unless an assurance was expressly agreed upon.
b) The exclusion of claims for damages shall not apply if the damage was caused by intent or gross negligence or if personal injury is involved. This also applies to the liability of a legal representative or agent.
3. To the extent that the subject of the contract is the obligation to produce a structure or a building, the following also applies:
a) The principal’s guarantee claims require that he complies with the maintenance intervals that are prescribed for the respective tasks and carries them out in a proper and professional manner. The guarantee rights of the principal relating to the reliability of connections and piping require that the principal informs us in writing when ordering concerning the composition of the media to be used and the forces and loads to be applied, along with other operating conditions for the building.
b) In the event that a defect is present for which we are responsible, our liability is as follows:
aa) All parts which, within 6 months of being brought into service, due to circumstances arising prior to the transfer of risk, in particular, due to faulty design, poor materials or defective workmanship, turn out to be unusable or whose use turns out to be significantly impaired are to be repaired or provided new. The discovery of such defects is to be reported to us immediately in writing. Replaced parts become our property. If the bringing into service is delayed through no fault of our own, liability shall cease no later than 12 months after the transfer of risk.
For essential third party products, our liability is limited to claims we are entitled to against the supplier of the third-party product.
bb) We assume no responsibility for damages arising from the following reasons:
- Inappropriate and improper use, faulty installation or operation by the principal or a third party engaged by the principal
- Natural wear and tear
- Faulty or negligent treatment
- Unsuitable equipment
- Replacement of materials
- Unsuitable building ground
cc) To enable us to make any repairs or replacement deliveries which we deem necessary at our reasonable discretion, the principal shall allow us the necessary time and opportunity, otherwise we shall be relieved from our liability for defects. Excluded are cases involving urgent danger to life and limb or the operating safety and the prevention of disproportionately large damage. In these cases, the principal has, provided we do not remedy the defect immediately after notification, the right to remedy the defect himself or through a third party and to demand from us reimbursement for the costs incurred.
dd) Liability for defects as well as any consequential damage is expressly excluded for any modifications and repairs carried out by the principal or third parties without gaining our prior approval.
4. Our liability is limited to the foreseeable damage.
5. As far as a non-mandatory statutory liability intervenes, our obligation to pay is for negligent breach of a contractual obligation for property damage or personal injury is limited to the payment of our product liability insurance, while we are prepared to allow the principal to examine the policy upon request.
§ 7 - Limitation
Defects, claims and claims for damages expire in 12 months.
In cases of injury to life, limb or health, with wilful or grossly negligent breach of duty, along with fraudulent concealment of a defect, the statutory limitation periods apply as with the claims for damages under the German product liability law.

§ 8 - Retention of Title

1. The supplied goods remain our property until the payment of the purchase price and settlement of all claims arising from the business relationship and claims that might still arise in connection with the delivered goods. The inclusion of individual claims in a current account or balancing of the account and acceptance of this do not abrogate the retention of title. If a liability is established on our part in connection with the payment of the purchase price by the client, retention of title will not expire until payment of the bill of exchange by the principal as the drawee. If the principal delays payment, we shall be entitled to repossess the reserved good after due notice and the principal is obliged to surrender possession.
2. If the reserved good is processed into a new movable item by the principal, processing is carried out for us without our being under any obligation; the new item becomes our property. If such goods are processed together with any other goods not owned by us, we shall become co-owner of the new items in proportion to the value of the goods subjected to retention of title at the time of processing. If the reserved good is combined, mixed or merged with goods not belonging to us, in accordance with §§ 947, 948 of the German Civil Code, we shall become joint owner in accordance with the statutory provisions. If due to combining or mixing goods, the principal acquires the sole ownership, he transfers this right of ownership to us in proportion to the value of the goods subjected to retention of title at the time of combining or mixing goods. In such cases, the principal shall be obliged to store the object of
which we are owner or co-owner, which is also a reserved good in the sense of the above stipulations, at no cost.
3. If such reserved goods are sold by the principal, either alone or together with objects belonging to us, the principal hereby assigns the accounts receivable from the sale up to the value of the reserved goods with all rights and priorities over other claims; we already accept this assignment with immediate effect. The value of the reserved goods shall be the amount we invoice plus safety loading of 10%, which, nevertheless, shall not be applied to the extent that the rights of third parties may be enforced against it. If the resold reserved goods are in our ownership, the assignment of the claims shall include the sum that corresponds to the value of the share of the co-ownership. Para. 1 sentence 2 applies accordingly for extended reservation of ownership; the advance assignment – in accordance with § 3 para. 1 and 3 – also covers the outstanding balance.
4. If the reserved goods are installed as a fixture on a third party’s piece of property by the principal, the principal hereby assigns the claims for payment arising against the third party or the party concerned the value of the reserved goods along with all subsidiary rights including the right to enter a debt-securing mortgage with all rights and priorities over other claims to us. We already accept this assignment with immediate effect. Para. 3 sentence 2 and 3 apply accordingly.
5. Should the reserved goods be installed as a fixture on a third party's piece of property by the principal, the principal hereby assigns the claims arising from the commercial sale of the real property or from real property rights to the value of the reserved-title goods with all additional rights and with priority over all other debts; we already accept this assignment with immediate effect.
6. The principal is entitled to resell, use or install the reserved goods only in the ordinary and proper course of business and only under the condition that the claims for payment actually pass over to us in accordance with para. 3, 4 and 5. The principal is not entitled to other claims of the reserved goods, in particular authorisations for pledging or transfer of security.
7. We authorise the principal, subject to revocation, to collect the claims from the resale according to para. 3, 4 and 5. We shall make no use of our own authorisation to collect as long as the principal meets his payment obligations, including to third parties. At our request, the principal is to inform us immediately of the assigned claims and the debtors in respect thereof. We are also entitled and empowered to disclose the assignment to the debtors directly.
8. If the value of the security interests existing for us exceeds our claims for payment by more than 20% in total, we are obliged, at the principal’s
request, to release security of our choice in that amount. The principal shall notify us in writing of seizures or other impairments by third parties without delay.
9. In the event that the principal fails to meet his payment obligations or an application for the initiation of insolvency proceedings has been made on the assets of the principal, the principal is obligated, upon request, to release the reserved goods. Due to retention of title, we can, nevertheless, only demand release if we have withdrawn from the contract.
In the event of debt execution measures by third parties against the reserved goods or the assigned claims, the principal shall notify us in writing immediately, handing over all of the necessary documents required to oppose such proceedings.
10.With cessation of payments, application or initiation of insolvency proceedings, as well as initiation of proceedings for the submission of the affidavit, the right to the resale, the use or installation of the reserved goods will lapse along with the authorisation to collect the assigned claims; authorisation shall also lapse if a cheque or bill is protested.

§ 9 - Place of Jurisdiction

1. If the conditions imposed by § 38 German Code of Civil Procedure for an agreement as to the legal venue are satisfied, the place of jurisdiction for all claims between the contracting parties, including all lawsuits in connection with bills of exchange and cheques, shall be the location of our registered address; however, we are entitled to take legal action against the principal at the court of jurisdiction for his registered address.
2. The law of the Federal Republic of Germany applies.

§ 10 - German Data Protection Law

The client permits the data necessary in the scope of the order processing and billing to be processed and stored (§ 3 of the German Data Protection Law). The invoice (delivery note) is also regarded as notification under § 33 of German Data Protection Law.