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GENERAL TERMS AND CONDITIONS OF Hoffmann Elektro & Energiesysteme GmbH & Co. KG

I.    General

1. The following terms and conditions apply for our deliveries and services, as well as information, offers, advice and repairs. Customer conditions apply only if and insofar as we explicitly accept them in writing.

2. Otherwise, our internal and external sales staff have no authority to make deviating or supplementary agreements or to grant special conditions.

3. In accordance with Section 33 German Federal Data Protection Act, we would like to point out that we store and process data from our customers electronically, as far as this is necessary for properly executing our business transactions.

4. The assignment of claims against us to third parties is excluded. Section 354 a German Commercial Code shall remain unaffected.

II.    Documents provided

Documents belonging to the contractor’s offer, such as images, drawings, etc., should only be seen as approximate with regard to weights and dimensions unless the accuracy of the weights and dimensions is expressly confirmed. We reserve all proprietary rights and copyrights of all documents provided in connection with the contractor’s offer, such as calculations, drawings, etc.. These documents shall not be made accessible to third parties, unless we give the client our express written permission. Insofar as we do not accept the customer’s offer within the period stated in clause III.2, the documents must be returned to us without delay.

If the order is not placed, documents prepared to customer specifications shall be returned without prior request and in all other cases shall be returned immediately upon request.

III. Offer and conclusion of contract

1. Our offers are non-binding, provided the binding force was not explicitly stipulated in the offer.

2. The order signed by the customer constitutes a binding offer. We can accept this order within two weeks by sending confirmation of the order or by sending the ordered goods within this period or by starting to provide the services.

3. All information and data concerning our goods and services, especially the images, drawings, and data regarding weights, measurements and performance contained in our offer and publications, are to be regarded as approximate average values. They are not guaranteed quality features, but descriptions or characterizations of the goods. Unless limits for permissible deviations have been expressly established and described as such in the order confirmation, deviations customary in the industry are admissible in any case.

IV.    Prices

1. Only the prices stated in our order confirmation are authoritative. Additional services shall be charged separately.

2. All prices are net prices excluding VAT, which the customer shall have to pay at the relevant legal rate.

3. Provided nothing has expressly been agreed otherwise, our prices apply ex registered office of the contractor. The Customer shall bear freight costs , exceptional packaging costs beyond those customary in the trade, supplementary charges and public charges.

4. Costs for orders not completed

Because fault location time equals working time, in the event that no work under warranty exists, the customer shall be charged for the expenses incurred if an order is not carried out because:

1. the fault that is the subject of the complaint could not be determined while observing good engineering practices;
2. the customer delays culpably beyond the agreed deadline;
3. the order was withdrawn during execution;
4. the conditions upon receipt for the use of appropriate products from the consumer electronics sector are not unequivocally met.

V. Delivery

1. Delivery deadlines and dates are valid only after explicit written confirmation. Delivery deadlines (dates) begin on the date of our order confirmation, but not before explicit clarification of all the details of the order, including the provision of any official certificates required. They are considered to be met as of the goods being declared ready for dispatch if the goods cannot be dispatched without any fault on our part.

2. In the case of deadlines and dates that are not expressly referred to as binding in the order confirmation, the customer can, two weeks after they have elapsed, set an appropriate deadline for delivery/service provision. We can only be considered to be in default after expiry of this extension period.

3. Deadlines and dates are extended, without prejudice to our rights arising from default of the customer, by the period in which the customer does not meet its obligations to us. In the case of a breach of duty on our part – for whatever reason – we shall be liable for damages of whatever type only to the extent provided for in clause XI of these Terms and Conditions.

4. Self-delivery remains reserved

5. The customer is entitled to terminate the contract according to the legal provisions, unless the hindrance is only temporary in nature and the postponement of the deadline for executing the contract would not unduly affect the customer.

6. We are entitled to make partial deliveries and provide partial services if these do not unduly affect the customer.

7. If the customer has a contractually agreed or statutory right of withdrawal, and if we set the customer a reasonable deadline for exercising this right, the right of withdrawal lapses if the customer has not declared its intention to withdraw before the expiry of the deadline.

The agreed delivery or completion date shall only be binding if compliance with it is not made impossible by circumstances for which the contractor is not responsible. Such circumstances should also be considered to include changes in, as well as the absence of, documents (building permits, etc.), which are necessary for executing the contract.

In cases of default (in the provision of construction work) the customer only has a claim under Section 8 No. 3 Construction Contract Procedures Part B, if a time according to the calendar was agreed for the start and completion of works and after this time had elapsed the customer determined a reasonable extension and has declared that after the contractor has failed to meet the extended deadline, he will withdraw the order.

VI. Dispatch, transfer of risk, default of acceptance

1. Dispatch and transport are always at the customer’s risk. The risk passes to the customer, also in the case of partial deliveries, as soon as the consignment has been handed over to the person carrying out the transport or, for the purposes of shipment, the consignment has left our warehouse or, in the case of delivery ex-works, the consignment has left our factory.

2. If dispatch is delayed for reasons that are the responsibility of the customer, the risk of accidental deterioration and of accidental loss of the goods shall pass to the customer upon notification of readiness for dispatch. The customer bears the storage costs following the transfer of risk. We have the right to charge 1 % of the gross order value per month for this. Further entitlements remain unaffected.

3. Should the customer be in default of acceptance, we are entitled to claim refund of any expenditure associated with that default. On commencement of the default in acceptance, the risk of accidental deterioration and of accidental loss passes to the customer.

VII. Payment

1. Payments are to be made in EUROS and free of postage and expenses. Bills of exchange and checks count as payment only after they have been cashed and are accepted without any obligation of timely presentation and protest.

2. Payment shall be made net immediately after receipt of the invoice, beginning with the date of the invoice .

3. If the period allowed for payment is exceeded, we shall be entitled to charge interest equivalent to the rate charged by banks for overdrafts, but in any case with a minimum rate of five percentage points above the interest rate for peak refinancing facilities applied by the European Central Bank (PRF rate). Each contracting party is entitled to establish proof of another interest rate disadvantage. Claims in case of default remain unaffected. Timeliness of payment is determined by receipt of the money and not by the fact that the money has been sent.

4. Where costs and interest accrue, we are entitled to assign payments first to the costs, then to the interest and last of all to the principal amount.

5. The customer is only entitled to offset any counterclaims if they are declared enforceable or are undisputed. The customer is authorized to exercise a right of retention only insofar as his counterclaim rests on the same contractual relationship. In the case of traders, the withholding of payments due to – or offsetting with – counterclaims by the customer is only permitted if these counterclaims have been legally determined or are undisputed.

6. All our claims – including those arising from other contracts with the customer – shall be due and payable immediately, irrespective of the term of any received and credited bills in case of default of payment, a notice given in protest against a bill of exchange or suspension of payment by the customer, or if circumstances otherwise become known to us that give cause for justified and serious doubts as to the customer’s ability to pay or doubts as to his creditworthiness. This also applies if the customer was already affected by these circumstances at the conclusion of the contract, but these circumstances were not known or did not have to be known to us . In all the above-mentioned cases we are also entitled to make outstanding deliveries only against prior payment or deposit and, if the prior payment or deposit is not made within two weeks, to withdraw from the contract without setting any other deadline. Further claims remain unaffected.

VIII. Reservation of proprietary rights

1. All goods delivered remain our property (reserved goods) until such time as all accounts have been settled, irrespective of legal grounds, including future or contingent receivables, from contracts concluded at the same time or subsequently. This also applies if payments are made in respect of specifically designated claims.

2. Processing and manufacture of the reserved goods are carried out by us as manufacturer within the meaning of Section 950 German Civil Code, without obligations. The manufactured goods are defined as reserved goods within the meaning of Section 1. In the event of the reserved goods being processed, combined or mixed by the customer with other goods, we shall be entitled to co-ownership of the new goods as a proportion of the invoice value of the new item in relation to the invoice value of the other goods used. Should our ownership be dissolved by combining or mixing, then the customer shall transfer ownership rights to us now for the new item or product to the extent of the invoice value of the reserved goods and shall store it for us without charge. The ensuing rights of co-ownership are deemed to be reserved goods within the meaning of Section 1 .

3. The customer is only entitled to resell these reserved goods, process them, combine them with other items or otherwise incorporate them (hereinafter to be referred to as resale) in the ordinary course of business and if he is not in default. Any other form of disposal of the reserved goods is inadmissible. We are to be immediately notified of any attachments by third parties or other access to the reserved goods. All costs of intervention shall be borne by the customer, insofar as they cannot be collected from the third party (opponent of the action against execution) and the third-party action has been filed justifiably. If the customer grants his buyer a respite from payment of the purchase price, he must reserve title to the reserved goods under the same terms as those under which we reserved the proprietary rights upon delivery of the reserved goods. However, the customer shall not be obliged also to reserve the title to claims only arising against his buyer in the future. Otherwise, the customer does not have the right to resell.

4. The claims of the customer from the resale of the reserved goods are herewith already assigned to us. They shall serve as collateral to the same extent as the reserved goods. The customer is only entitled and authorized to resell if he is ensured that his claims arising from this are passed to us.

5. If the reserved goods are sold by the customer for a total price together with other goods not supplied by us, the customer shall assign to us the receivables from such a resale in the amount of the invoice value of the reserved goods sold by us.

6. If the assigned receivable is included in a current account, the customer shall immediately assign to us that part of the balance which is equivalent to the amount of such receivable, including the final balance from current account operations.

7. Until we give notice of revocation, the customer shall be authorized to collect receivables assigned to us. We shall be entitled to such revocation if the customer fails to meet his payment obligations under the business relationship with us or if circumstances become known to us which may significantly reduce the creditworthiness of the customer. If the preconditions for exercising a revocation right are fulfilled, the customer shall promptly notify us of any assigned receivables with the respective debtor, furnish all data required for collection of such receivables, hand over all related documentation and advise the debtor of such assignment. We are also entitled to personally advise the debtor of such assignment.

8. If the value (in case of claims the nominal value; in case of movables the appraised value) of the collateral deposited in our benefit exceeds the amount of secured claims by a total of more than 50 per cent, we shall release securities of our own choice on the customer’s request.

9. If we claim retention of title, this shall only be understood as withdrawal from the contract if expressly stated so by us in writing. The customer’s right to possess goods under retention of title shall be null and void if he fails to meet his contractual obligations.

IX. Acceptance

1. After execution of the work, we shall carry out an acceptance test.

2. The work is accepted and the acceptance test is deemed to have been completed if the work has successfully passed the acceptance test. Acceptance cannot be denied due to a deficiency that only insubstantially reduces value or serviceability.

3. If you forego an acceptance test or do not attend this test after having been requested to do so, we shall be entitled to proceed with the acceptance test without you and you shall be obliged to approve the results of the acceptance test. You shall be liable for costs arising from a delay in the acceptance test for which we are not responsible. In any case, the work or item is considered to have been accepted when you have made use of the work or item.

X. Warranty and obligation to give notice of defects

1. If the customer is a registered trader, he is obliged, immediately after receipt of the goods, to examine them carefully to ensure that they are complete and in good condition. The obligation to give notice of defects within the meaning of Section 377(1) (2) German Commercial Code lasts for eight days; the date taken is that of receipt of a written notification (it may also be sent by fax machine). The limitation period for claims arising from defects in goods is two years in the case of consumers and one year in the case of companies; this provision does not apply in the case of a defect that is based on a right in rem of a third party, on the basis of which surrender of the item may be claimed.

2. The item that is the subject of a complaint is to be returned to us for inspection in the original or equivalent packaging. In the case of a justified and timely warranty claim, we shall remedy the defects by way of supplementary performance of our choice, by remedying the defects or supplying an item free of defects. In doing this we shall bear the costs of remedying the defects, provided these are not increased by the fact that the item delivered was transported to a location other than the place of performance. We are entitled to refuse a supplementary performance in accordance with legal regulations. In case of a refusal of a supplementary performance, its failure or its unacceptability to the customer, the customer is entitled to withdrawal from the contract or to a reduction (decrease in the purchase price) in accordance with the provision in point 3 below.

No warranty shall be provided for defects in the delivered product or product parts that are caused by normal wear and tear.

3. The customer is only entitled to terminate the contract – provided a termination is not excluded by law – or to a reduction in the purchase price upon the unsuccessful expiry of a reasonable period for supplementary performance set by him, unless this period was not required according to legal regulations (Section 323(2); Section 440 German Civil Code , Section 441(1) German Civil Code). In case of termination, the customer is liable for deterioration, loss and loss of utilization not only for his own customary due care but for any negligence or intent on his part.

4. For any claims for damages or compensation by the customer, the provisions in clause XI apply.

5. If disclosure of a defect is maliciously withheld or a warranty is given by us that the item delivered will be of a particular quality at the time the risk passes within the meaning of Section 444 German Civil Code (declaration by the seller that the item purchased has a specific characteristic at the time of risk transfer and that the seller is prepared to take responsibility for all consequences of its defects), the customer’s rights shall be exclusively in accordance with the legal regulations.

6. In addition to the statutory grounds for refusal, we shall also be entitled to refuse supplementary performance if and as long as the customer fails to send us, at our request, the rejected goods; as a result of such a refusal, the customer has no right to withdrawal or a reduction in the purchase price. The customer shall not acquire any rights in respect of defects or deficiencies if alterations or modifications are made to the goods without our consent, unless the customer can prove that the defect was not caused by these alterations or modifications.

7. If the end buyer of the merchandise in the supply chain is a consumer, the customer shall be entitled to have recourse in accordance with the relevant legal regulations (Sections 478, 479 German Civil Code) if the prerequisites of Section 377 German Commercial Code are met; any rights of the customer to damages or compensation shall, however, be subject to the provisions in clause XI.

8. Deviations of the delivered goods from the order confirmation which are customary for the industry shall not be considered defects. The customer shall have no right to make claims for any kind of defect in the case of goods sold as declassified or used material.

9. If our operating and service instructions are not adhered to, if changes are made to the goods supplied or services provided, if parts are replaced or consumables are used which do not conform to the original specifications, all warranties shall become void unless the customer can show that the defect in question resulted from another cause.

10. In case of works we guarantee free rectification of the works as well as free repair or replacement of defective materials, if you can demonstrate that a work was carried out in a deficient or unprofessional manner.

If we fail to remedy the defects twice, you shall be entitled to demand a reduction in price or rescission of the contract. If defects occur that were not caused by incorrect work, especially defects due to natural wear and tear, improper treatment or other third-party influences , these shall not be covered by the warranty. However, the customer is only entitled to claims for damages or compensation in accordance with the provisions of clause XI. The limitation period for warranty claims is 24 months for consumers. For companies, the limitation period for warranty claims is 12 months.

XI. Warranty and liability

1. The warranty period is one year for all work performed, repairs, etc., which are not construction work, and for installed material.

2. For dealings between companies, Construction Contract Procedures Part B apply in their entirety, as do parts of the Construction Contract Procedures Part C, for construction work.

3. In the event of a defect, the customer has to set the contractor an appropriate deadline for supplementary performance. The customer has in particular to ensure that the rejected item is available to the contractor or to the person or company commissioned by the contractor for inspection and for carrying out the supplementary performance.

4. If the contractor is obliged to provide a supplementary performance, he can choose either to remedy the defect or replace the item.

5. If the supplementary performance fails, the customer has the right to reduce the payment or withdraw from the contract. Withdrawal is excluded if the contractor’s breach of duty is insignificant or if the subject of the contract is a work of construction.

6. In the case of damage to life, body or health that is the result of a grossly negligent dereliction of duty on the part of the contractor or a deliberate or grossly negligent dereliction of duty by the contractor’s legal representative or agent, the contractor shall be liable in accordance with the legal regulations. The same applies for any other types of damage that are the result of gross negligence on the part of the contractor or a deliberate or grossly negligent dereliction of duty by the contractor’s legal representative or agent. For any other types of damage that result from negligent violation of essential duties resulting from slight negligence on the part of the contractor, his legal representative or agent, the contractor’s liability is limited to the foreseeable losses typical of the contract up to a maximum of twice the value of the subject of the order.

7. Claims for damages are excluded for any other damage in the event of a breach of secondary obligations in the case of slight negligence. The contractor is not liable for any other damage due to delay resulting from slight negligence; this does not affect the customer’s statutory rights following expiry of a reasonable extension period. The above liability exclusions and/or limitations do not apply insofar as the contractor has fraudulently concealed a defect or has assumed an independent warranty for the quality of the item. Claims by the customer for reimbursement of wasted expenditure instead of claims for damages instead of the performance remain unaffected.

8. Claims for defects for all new items sold lapse in two years; claims for used items lapse within one year after delivery of the item. The customer must report obvious defects to the seller within two weeks after delivery – based on the date the report is sent – as the seller is otherwise freed from liability for the defect.

9. If the item delivered is defective, the buyer has the following rights:
1. The seller is obliged to provide a supplementary performance and shall provide this by remedying the defect or supplying a replacement item free of defects.

2. If the repair fails, the buyer has the right to withdraw from the contract or to reduce the purchase price. Withdrawal is excluded if the breach of duty is only insignificant.

3. A defect is not deemed to be present in the item delivered in case of faults caused by damage, incorrect connection or improper operation by the customer; in case of damage due to force majeure, such as lightning strike; in case of faults resulting from excessive stress on mechanical or electromagnetic parts due to improper use or due to soiling or contamination or extraordinary mechanical, chemical or atmospheric effects. In the consumer electronics sector, a defect is also not deemed to be present if the reception quality is impaired due to unfavorable reception conditions or defective antennas or external influences, or due to damage caused by an unsuitable or defective battery inserted by the customer.

XII. Extended right of lien of the contractor on movable goods

1. Because of his claim resulting from the order, the contractor has a right of lien on the customer’s item that comes into his possession as a result of the order. The right of lien can also be applied as a result of claims arising from works, deliveries of replacement parts or other performances carried out earlier, insofar as they are associated with the item. The right of lien applies for other claims only insofar as these are undisputed or legally established.

2. If the item is not collected within four weeks of the contractor requesting this, the contractor may charge appropriate storage costs upon expiry of that period. If the item is not collected at the latest three months after the request for collection, the obligation to further storage shall lapse, together with any liability for damage or loss due to slight negligence. One month before expiry of this period, the customer shall be sent a warning letter to the effect that the item will be sold. Upon expiry of this period, the contractor is entitled to sell the item at the market value to cover its claims. The customer shall be reimbursed for any surplus proceeds.

XIII. Limitation of liability

1. In the event of a pre-contractual, contractual or non-contractual infringement of obligation – including unsatisfactory delivery of a fungible good – tort, and manufacturer’s liability, we shall not be liable to pay damages or compensation – subject to the reservation of further contractual or statutory liability preconditions – unless such a breach was caused on our part intentionally, by gross negligence or by slight negligence, if such minor negligence results in the breach of a material contractual obligation (a contractual obligation the breach of which prejudices the achievement of the contractual objective). However, except in the case of intent, our liability shall be limited to the contractually typical damage that was foreseeable at the time the contract was concluded.

2. If, on a case-by-case-basis, the article of sale cannot be used in the way envisaged in the contract as a consequence of work not having been done or having been done incorrectly based on suggestions or advice having been given either prior to or after conclusion of the contract, or if other additional contractual obligations have been breached, then the points 1 and 7 as well as the rules set out in clause X apply accordingly, excluding other claims on the part of the ordering party.

3. For damages caused by delay, we shall only be liable for slight negligence up to 5 % of the purchase price agreed with us.
4. Except for any breach of material duties, our liability for slight negligence shall be excluded, but in any case, it shall be limited to the amount of the purchase price. Point 2 shall remain unaffected.

5. The exclusions and limitations of liability included in points 1 to 3 shall not apply in the case of transfer of warranties concerning the condition of a good within the meaning of Section 444 German Civil Code (see clause X point 5), in the case of fraudulent concealment of a defect, in the case of injuries to life, body or health as well as in the case of strict liability under the German Product Liability Act.

6. Any and all claims for damages against us, for any legal reason whatsoever, shall lapse at the latest after one year from delivery of the goods to the customer, if he is a registered trader, in the case of tortious liability from the time of knowledge, or grossly negligent ignorance, of the circumstances giving rise to the claim and the person liable to pay damages. This provision shall not apply – and then the legal provisions shall apply – in the case of liability for intent and in the cases specified in point 4. Any shorter statutory periods of limitation shall take precedence.

7. If the ordering party is an intermediary and the ultimate buyer of the good is a consumer, the legal provisions shall apply for the limitation period of the customer’s right of recourse against us.

8. Our liability, the liability of our employees and vicarious agents for software supplied by us shall be limited for losses or alteration of data caused by the program to such an extent which could have been avoided by the customer’s compliance with his duty to secure such data at appropriate intervals and at least once per day.

XIV. Manufacture according to the customer’s instructions

1. With regard to manufacture according to a customer’s drawings, samples or other instructions of the customer, we shall not assume any warranty or liability for the functionality of the product and for other faults if and to the extent that they are based upon the customer’s specifications.

2. The customer indemnifies us from possible claims by third parties, also arising from product liability, against us due to damages caused by the goods, unless we have caused such damage by willful intent or gross negligence.

3. The customer shall assume liability towards us that the manufacture and supply of products made in accordance with his instructions will not infringe any property rights of third parties. In the event of claims against us made by third parties third parties due to infringement of industrial property rights we are entitled, without any legal examination of such possible claims of third parties, after hearing the customer, to withdraw from the contract, unless the third party withdraws the enforcement of the industrial property rights by a written statement sent to us within eight days. The customer shall compensate any possible damage caused by the enforcement of the industrial property rights. In case of withdrawal, the work we have carried out so far shall be remunerated. Further rights under the statutory provisions shall not be affected thereby.

4. Any molds, tools and design data produced by us for the execution of the order shall be our exclusive property. Unless expressly agreed otherwise, the customer shall not have any claims thereto, even if he has contributed to the costs of the production of any such molds, tools and design data.

XV. Confidentiality

If no other arrangement has been explicitly agreed in writing, the information provided to us in connection with orders shall not be deemed to be confidential unless its confidential nature is obvious.

XVI. Severability clause

The ineffectiveness of any provision shall not affect the effectiveness of the other provisions. Such invalid provisions shall be replaced by such valid provisions which come as close as possible to the commercial purpose of the contract.

XVII. Place of performance, jurisdiction and applicable law

1. Place of fulfillment for our deliveries is the supplying plant for delivery ex works and the registered office of the customer for services.

2. The place of jurisdiction for any disputes arising from this contract shall be, at our sole discretion, either our registered office or the registered office of the customer, and for legal actions made by the customer exclusively our registered office. Any statutory provisions regulating exclusive jurisdictions shall remain unaffected.