TEKADOOR GmbH’s General Terms and Conditions of Delivery and Payment

As of March 2020

1. Incorporation of the Terms and Conditions – Defense Clause

These General Terms and Conditions of Delivery and Payment apply to all purchase and/or delivery contracts, as well as similar contractual relationships, that we enter into for the purpose of selling the products we distribute.

We object to the use or incorporation of any general terms and conditions of our contracting party, i.e., the incorporation of the buyer’s or client’s (hereinafter referred to simply as “Client”) terms and conditions of purchase and/or supply. This objection applies in particular to cases where the buyer or client seeks to incorporate its General Terms and Conditions by reference in orders and/or commercial confirmation letters.

To the extent that our intended incorporation of our General Terms and Conditions of Delivery and Payment fails due to a conflict between mutual references or declarations of incorporation under the law, and to the extent that we have begun performing the contract, the contract is concluded with the terms on which an agreement has been reached—namely, the goods to be delivered, prices, and other express agreements, so that the statutory provisions—in particular those of the German Commercial Code (HGB) and the German Civil Code (BGB)—apply in place of the conflicting general terms and conditions.

The contract shall be deemed to have taken effect upon shipment of the goods, insofar as standard products or products from our general product line are concerned, or upon commencement of production for custom-made products, provided that the buyer is aware of this and has not objected or does not object immediately.

2. Binding Nature of Offers – Obligations During Contract Negotiations – Order Confirmation

Our offers are subject to change. A contract is concluded only upon our written order confirmation. Unless we expressly request the buyer or client to provide written confirmation in our order confirmation, we waive the requirement for receipt of a declaration of acceptance.

Prior to that, we are bound by price quotations only to the extent that the binding period is expressly stated in writing in the offer.

All information contained in catalogs, brochures, product sheets, and other descriptions of characteristics and/or performance is nonbinding. Only the relevant information that is current as of the date of the order confirmation shall apply—that is, in accordance with the most recent publication, presentation, or reference provided in the order confirmation.

The buyer is solely responsible for the information provided in the order and for selecting the ordered goods for their intended use.

To the extent that we provide samples, documents, or product- or process-related information prior to the conclusion of the contract, our negotiating partner must treat these as strictly confidential and return them to us, unless it is clearly evident from the contract subsequently concluded that the buyer or client is to retain these items.

To the extent that such items are protected by copyright or are our property, we expressly reserve all rights in this regard.

3. Prices and Payment Terms, Cancellation

Unless otherwise agreed, prices are ex works, including packaging and loading at the factory. The prices listed in our quotes are net prices, plus value-added tax. Value-added tax at the applicable statutory rate will be added.

Payments must be made within 30 days of the invoice date. Deductions for early payment, such as a discount, or for other reasons, e.g., a bonus, are permitted only to the extent that we have expressly granted them to the buyer/client in the order confirmation.

Payment deadlines are considered met only if the corresponding funds are available to us in our bank account without reservation before the deadline expires.

If the goods are custom-made, the buyer or client is required to pay one-third of the purchase price within 10 business days after the purchase agreement is concluded.

If there is reasonable suspicion that the buyer’s or client’s financial circumstances have deteriorated or are deteriorating—particularly in the event of significant disruptions to their operations, delinquencies in other payments, a substantial loss of equity, or the filing of a petition for insolvency—we are entitled to demand payment concurrently with delivery of the goods.

If it appears that the buyer or client will not pay the compensation for custom-made goods, we are entitled to withdraw from or terminate the contract for cause.

4. Delivery, Transfer of Risk, Terms of Carriage

Even if we arrange for the shipment of the goods to their destination, our obligation to transport them extends only as far as the point where transport can be carried out by freight truck on public roads or similarly paved traffic routes; we are not obligated to transport the goods on construction sites to the location where they are to be used or assembled.

In such cases, delivery takes place next to or behind the truck after unloading. If the truck driver cannot unload the goods alone or with the use of equipment alone, the buyer shall provide the necessary personnel and equipment; in such cases, the buyer or the client bears the risk associated with unloading.

In any case, the risk passes to the buyer or the customer at the time the goods leave our plant. Even if we arrange for transportation and/or bear the transportation costs, our liability is limited to the careful selection of a suitable carrier and the agreement of contractual terms regarding transportation that, under normal circumstances, are sufficient to ensure that the goods are delivered safely and on time to their destination.

We are obligated to insure the goods being transported only if and to the extent that this has been expressly agreed upon.

If deliveries are agreed upon for a specific time (just-in-time), we are only responsible for the timely conclusion of the contract and the timely consignment of the goods for transport; under no circumstances, however, are we responsible for compliance with transport deadlines and/or delivery dates, which cannot be validly agreed upon under applicable transport law.

We shall not be liable for failure to deliver or for delays in delivery to the extent that these are caused by force majeure or other events that were unforeseeable at the time the contract was concluded and for which we are not responsible.

These include, for example, operational disruptions of any kind, difficulties in procuring materials or energy, transportation delays, strikes, lawful lockouts, shortages of labor, energy, or raw materials, as well as difficulties in obtaining the necessary government approvals.

If such events make delivery or performance significantly more difficult or impossible for us, and the hindrance is not merely temporary, we are entitled to withdraw from the contract.

In the event of temporary obstacles, the delivery or performance periods shall be extended, or the delivery or performance dates shall be postponed, by the duration of the hindrance plus a reasonable start-up period.

5. Pickups, Default of Acceptance, Partial Deliveries

If delivery is to be made on call, the buyer or client is obligated to place orders within the time period and in the quantities that could reasonably be expected at the time the contract was concluded, based on the normal course of business.

If the order confirmation does not specify a delivery period for call-off orders, a period of 4 weeks shall apply.

If calls for delivery are not made promptly after we have set a reasonable deadline for the buyer or client to call for delivery or accept the goods, the buyer or client shall be in default of acceptance and in default of payment.

Upon delivery, the risk associated with the goods passes to the buyer or client; furthermore, the buyer or client is obligated to pay for the goods with respect to which he is in default of acceptance, regardless of whether they have been delivered.

Partial deliveries are permitted, provided they are reasonable for the buyer or the client.

6. Liability for Material Defects / Warranty

The buyer’s/client’s legal obligation to inspect the goods and to report any defects without delay may not be limited or excluded under any circumstances.

In the event that goods delivered by us are defective and the buyer/client is entitled to a claim for subsequent performance, we are entitled to decide whether we will fulfill this claim by providing a replacement or by remedying the defect, i.e., through repair.

If the buyer/client is a business equipped to assemble or install ventilation and/or heating systems, we are entitled to require the buyer/client to perform the assembly and/or installation work associated with the replacement delivery or repair for us without delay, at prices customary in the area and deemed reasonable.

If it turns out that a complaint regarding defects is unfounded or that malfunctions are not attributable to a material defect in the delivered goods, the buyer/client is obligated to reimburse us for the costs incurred in connection with the inspection, whereby the costs for personnel or technicians must be reimbursed at prices customary in the local area and deemed reasonable.

If the statutory requirements are met, the buyer/client is entitled to rescind the contract or claim a reduction in price; claims for damages are limited in accordance with the disclaimer clause contained in these terms and conditions.

7. Limitation of Liability – Disclaimer

We are liable for damages that did not occur to the delivered goods themselves—regardless of the legal basis—only:

in the event of a willful breach of contract,
in the event of a breach of contract due to gross negligence on the part of our managing directors or executive officers,
in the event of a negligent injury resulting in death, bodily injury, or harm to health,
for defects that were fraudulently concealed,
as part of a warranty commitment,
in the event of defects in the goods, to the extent that liability exists under the Product Liability Act for personal injury or property damage to items used for private purposes.

In the event of a culpable breach of material contractual obligations, we shall be liable even in cases of gross negligence on the part of non-executive employees of our company and in cases of slight negligence; in the latter case, liability is limited to reasonably foreseeable damages typical for this type of contract.

Any further claims are excluded. This applies to claims for damages as well as to claims for reimbursement of expenses, e.g., for incidental damages, insofar as the claim for reimbursement of expenses is not directly aimed at reimbursing expenses in connection with subsequent performance.

8. Retention of Title, Simple and Extended

We reserve title to the delivered goods until the purchase price or the contractually agreed compensation has been paid in full and the buyer/client has fulfilled all other payment obligations arising from the contractual relationship.

The buyer/client is permitted only to resell the delivered goods, i.e., the goods, in the ordinary course of business and/or to incorporate them into a building or parcel of land in such a way that ownership passes to the property owner by operation of law, if and to the extent that the buyer/client has previously assigned to us its claims for payment in the amount of the purchase price against its customer or the property owner.

The buyer/client hereby assigns to us all payment claims arising in this connection from sales contracts, contracts for work and services, and/or contracts for work and materials against those to whom the buyer/client supplies the goods that are the subject of the contract or for whom the buyer/client performs work and services related to the installation or assembly of goods delivered by us.

The buyer/client agrees that, in the event that it falls behind on a payment, it will immediately inform us of the identity and legal status of its customer or the property owner and provide us with all documents necessary to collect or pursue the assigned claim.

We are entitled at any time to notify those who, to the best of our knowledge, are in possession of the goods of our retention of title and the assignment. The buyer/client hereby irrevocably authorizes us to issue such notice of assignment.

9. Set-off, Right of Retention

The buyer/client is entitled to withhold payments or set them off against counterclaims only to the extent that such counterclaims are undisputed or have been established by a final and binding judgment.

10. Governing Law, Jurisdiction

German law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods, shall apply to the formation of the contractual relationship and to the contractual relationship itself, provided that the buyer/client has its registered office or the branch office relevant to the contractual relationship in the Federal Republic of Germany and/or the goods are to be delivered, as intended, ex works or to a location in the Federal Republic of Germany.

If these conditions are not met, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall apply.

The place of jurisdiction is Langenfeld/Rh. However, we are also entitled to bring an action against the buyer/client in the place of jurisdiction determined by the buyer’s/client’s registered office or branch office, or by the place of performance.

TEKADOOR Terms and Conditions – Effective as of 03/2020