General Terms and Conditions of Sale and Delivery of Hermann Hartje KG

 § 1 Scope of application

(1) These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “TCSD”) shall apply to all sales and deliveries as well to all other performances (e.g. also to work performances) of Hermann Hartje KG (hereinafter referred to as “Hartje” or “we”). These TCSD shall form an essential part of all of our quotations and acceptances in relation to contracts and shall apply to all performances rendered by us including the orders placed through our online ordering system EOSweb.

(2) These TCSD shall exclusively apply. We shall not acknowledge any deviating, conflicting or supplementary general terms and conditions of the purchaser, even if we do not expressly object to their application. This shall also apply if we render the relevant performance without any reservations while being aware of the general terms and conditions of the purchaser. Any general terms and conditions of the purchaser shall become a part of the relevant contract in exceptional cases only if and to the extent that we have expressly consented to their application in text form (no personal signature required).

(3) Any individual agreements reached with the purchaser in particular cases (including ancillary agreements, supplements and amendments) shall have priority over these TCSD. Such agreements shall be made or confirmed in writing for evidential purposes. Subject to proof to the contrary, the contract or our written confirmation, respectively, shall be authoritative for the conclusion and the content of such agreements.

(4) These TCSD shall also apply to all future transactions with the purchaser, even if we do not refer once again to the application of the TCSD.

(5) These TCSD shall only apply in relation to businesspersons as defined by Section 14 of the German Civil Code [Bürgerliches Gesetzbuch, BGB].

(6) References to the application of statutory provisions shall only have a clarifying meaning. In addition to these TCSD, the statutory provisions shall apply even without any reference to this effect unless the statutory provisions have not been expressly amended or excluded in these TCSD.

(7) If the compliance with the written form requirement is provided for in these TCSD, the compliance with the text form requirement as defined by Section 126b of the German Civil Code shall be sufficient. Any statutory formal requirements shall remain unaffected.

§ 2 Quotations, conclusions of contracts, records, communication, orders through EOSweb

 (1) Cost estimates as well as price and shipping information (such as catalogues and presentations on the internet) shall not constitute any legally binding quotations but shall be understood as invitation to the purchaser to submit an offer. Orders placed by the purchaser shall be considered as binding offers in relation to us by which the purchaser shall be bound (in case of doubt) during a period of 14 days. The relevant contract shall be concluded if we confirm the purchaser’s order, start the performance of the relevant contract or deliver the goods. The customer’s order shall be considered as confirmed by Hartje if the customer’s order is indicated in the menu item “Outstanding orders (arrears)” in EOSweb. If our declaration shall be understood as legally binding quotation in exceptional cases, we shall be permitted to revoke the quotation at any time until the acceptance by the purchaser (unless expressly stipulated otherwise in the quotation).

(2) Any cost estimates, outlines, drawings, figures, service descriptions and other records that are not part of the items to be delivered shall remain in our ownership and we shall reserve all copyrights to them. It shall not be permitted to make them available to third parties and they shall be returned without delay upon request.

(3) After the placement of an order, we will communicate with customers through EOSweb. All information related to placed orders shall be provided in the customer’s portal in the order history in EOSweb. It shall be the customer’s responsibility to monitor the status of placed orders in EOSweb.

(4) Additional information regarding orders through EOSweb: We shall deliver exclusively to businesspersons. We will not sell any items to consumers. Orders may be placed only after the registration and admission of the purchaser to orders through EOSweb. The order process shall comprise the following steps: After the registration with the registration data, the purchaser may add the goods to a virtual shopping cart by clicking the button with the shopping cart symbol without any obligation arising on the part of the purchaser. The purchaser may view the content of the shopping cart at any time by clicking on the shopping cart symbol and may delete products from the shopping cart or change the quantities using the fields provided. Prior to placing an order, the purchaser shall have the option to examine all information provided and to correct any input errors using the provided fields for editing. Only when clicking on the field “Order and pay”, the purchaser shall submit a binding offer to conclude a purchase agreement. After the submission of the order to us, the order will be visible in the order history in EOSweb. Displaying this order shall constitute merely the confirmation of the receipt of the order and shall not yet constitute an acceptance of that order.

The relevant contract shall be concluded if we indicate the purchaser’s order in EOSweb in the menu item “Outstanding orders (arrears)”, confirm it in writing or notify the purchaser of the shipment of the goods or if we deliver the goods. We will save the texts of the contracts. In the course of the order process, the purchaser may read, print and store these TCSD. The German version of the contract shall be legally binding. The purchaser may store and/or print the content of the order immediately after placing the order. The customer may view the content of current orders and orders that have already been processed even after the conclusion of the relevant contract through the order history in EOSweb. The version of the TCSD applicable at the time of the conclusion of the relevant contract will not be stored there.

§ 3 Prices, payment terms

(1) Our prices shall be understood in euros plus the statutory turnover tax in the amount applicable in each case. Unless otherwise agreed, the prices shall apply ex warehouse (exw Incoterms 2020) plus the shipping costs (cf. item § 4 below), costs of packaging and insurance, customs duties and other taxes. In cases of drop shipping, the prices shall apply ex works (exw Incoterms 2020) of our supplier. Unless otherwise agreed, the prices applicable at the day of the conclusion of the relevant contract shall apply. If the invoice amount is lower than EUR 50.00, we will charge an administrative charge amounting to EUR 5.00 for small-scale orders.

(2) The indicated prices for our delivery shall be based on the circumstances existing at the time of the conclusion of the relevant contract. In the case of unforeseeable significant changes in costs after the conclusion of the contract which are beyond our control, e.g. increases in freight rates, transport costs, taxes, customs duties or other public charges, currency fluctuations, price increases for raw materials or supplies, we shall be permitted to adjust the prices at our reasonable discretion. In the case of price increases exceeding 15% of the net price, the purchaser shall be entitled to rescind the contract. Item § 5, subsection 3 shall apply to price increases due to supply shortages to which we have referred prior to the conclusion of the contract.

 

 

 

(3) Any invoice amounts shall be due for payment upon the receipt of the invoice and the delivery or acceptance of the goods. Unless expressly agreed with the purchaser, discounts such as early payment discounts shall not be permitted. The purchaser shall enter into default automatically if the invoice amount will not be paid within the agreed payment term or the payment term indicated in the invoice or – if no deviating payment term is indicated – within 14 days after the receipt of the invoice. The date at which we receive the payment shall be authoritative. An earlier entrance into default in accordance with the statutory provisions, in particular by means of a reminder, shall remain unaffected.

(4) We shall be entitled at any time, also within the scope of an ongoing business relationship, to conclude a contract in whole or in part only against advance payment.

(5) We shall be entitled to issue invoices in electronic form.

(6) During the default in payment, the purchaser shall be obliged to reimburse amounts of default interest and lump-sum damages in accordance with the statutory provisions as minimum damage. Asserting a claim for further damages shall not be excluded. In relation to businesspersons, our claim for interest as of the due date of the respective claim arising among businesspersons (Section 353 of the German Commercial Code [Handelsgesetzbuch, HGB]) shall remain unaffected.

(7) If it becomes apparent after the conclusion of the relevant contract that our claim to the purchase price is jeopardised by the purchaser’s lack of ability or willingness to pay (e.g. due to an application for the opening of insolvency proceedings or the default of other performance obligations), we shall be permitted to refuse performance and – if necessary after setting a deadline – to rescind the relevant contract. Section 321 of the German Civil Code shall apply (with the necessary modifications). In such cases, special agreements (including special discounts) shall be invalid.

(8) The purchaser shall be entitled to rights to offset and rights of retention if their counterclaims have become res judicata, are uncontested or if we have acknowledged them.

§ 4 Delivery, shipping costs and passing of the risk of accidental destruction or loss

(1) Unless otherwise agreed, we will deliver ex warehouse (exw Incoterms 2020).

(2) If we ship the goods on behalf of the purchaser or transport the goods ourselves, the transport costs shall be borne by the purchaser (unless otherwise agreed). We shall choose the shipping route and the kind of transport at our discretion without any special agreement. If we take the purchaser’s wishes into consideration, any additional costs incurred as a result of this shall be borne by the purchaser.

(3) The shipping options and costs applicable in the case of orders through EOSweb shall be displayed for the purchaser in the order process under “Type of shipment”.

(4) At the latest upon the handover of the delivery item to the forwarding agent, carrier or any other third party designated to carry out the shipment, the risk of accidental destruction or loss shall pass to the purchaser (whereby the start of the loading operation shall be authoritative). In the case of transports carried out by ourselves, this shall not apply if a separate fee has been agreed with the purchaser in order to cover transport risks (“Lump Sum for Insurance Costs”). In such a case, the risk of accidental destruction or loss shall not pass to the purchaser until the goods have been made available at the place of delivery.

§ 5 Delivery times / default in delivery

(1) Information on delivery dates shall be non-binding unless they have been agreed upon in writing as binding delivery dates. An agreed delivery period shall commence, at the earliest, with the conclusion of the contract, but not before the complete clarification of the technical and commercial details of the execution of the order. The commencement of all deadlines applicable to us shall also require the timely performance of all necessary acts of cooperation, in particular the timely receipt of all necessary information, as well as the purchaser’s compliance with the agreed payment terms. If duties to cooperate have not been fulfilled in due time, delivery periods shall not commence or shall be extended appropriately.

(2) The delivery shall be subject to the proviso that our suppliers supply us in due time and in the proper manner. We shall not assume any procurement risk. If a performance is not available, we shall notify the purchaser.

(3) If we are unable to ensure the delivery (by means of corresponding covering purchases) at the time of the conclusion of the contract because there are supply shortages on the part of our suppliers and if we have notified the purchaser prior to the conclusion of the contract in an appropriate and reasonable manner of supply shortages and the possibility of price increases, the following shall apply:

– The agreement shall be subject to deliverability. The delivery time shall be extended until the goods are available.

– The purchaser shall be entitled to rescind the contract if the goods will not be delivered within three months after the agreed delivery date.

– We shall be permitted to pass on to the purchaser any price increases made by our suppliers in the meantime. The purchaser shall be entitled to rescind the contract if the price increase amounts to more than 15%. Any further claims of the purchaser shall be excluded.

(4) We shall not be liable for any failures to deliver or delays in delivery if these are attributable to force majeure or any other impediment beyond our control and it could not reasonably be expected from us to take the impediment into consideration or to avoid or overcome the impediment or its consequences. This shall apply, for example, in the case of armed conflict, acts of terrorism, acts of God, operational, transport and traffic disruptions, non-deliveries of supplies and raw material supplies, strikes, lawful lockouts, government orders, mass illnesses, epidemics and pandemics, manufacturing disruptions including machine breakdowns and labour shortages. In such cases, we shall inform the purchaser of the impediment and its effects. If such an event makes it significantly more difficult or impossible for us to deliver or perform and the impediment does not have only a temporary duration, both parties shall be permitted to rescind the contract. In the event of impediments that have only a temporary duration, our deadlines for deliveries or services shall be extended or our delivery or service dates shall be postponed by the period of the impediment plus a reasonable start-up period. Either party shall be permitted to rescind the contract if the resulting delay exceeds the period of three months or if, as a result of the delay and before the expiry of this period, that party can no longer be reasonably expected to continue to comply with the terms of the contract – with the consequence that any advance payments made shall be refunded. There shall not be any other claims in that regard.

(5) Where reasonable, partial deliveries shall be permitted. Invoices issued for partial deliveries shall be due for payment irrespective of the total delivery.

(6) If we enter into delays in performance, the purchaser shall give us the opportunity to perform within a reasonable period of time. Generally, the grace period shall have a duration of at least three weeks.

(7) In the case of a default in delivery or the impossibility of performance, the liability for damages shall be governed only by item § 9.

§ 6 Duties of the purchaser, general duties of the purchaser to cooperate, liability of the purchaser for damages

(1) We will only deliver to knowledgeable purchasers. We will not deliver vehicles assembled ready for sale, but they require final assembly. This shall be in the purchaser’s own responsibility. The purchaser shall be obliged to have the final assembly, the assembly of components as well as the installation of parts or components carried out carefully and only by skilled and competent mechanics. In the event of an infringement of this provision, the purchaser shall be liable for any damage resulting therefrom. The purchaser shall indemnify us against any possible damage and disadvantage resulting from a faulty assembly by the purchaser.

(2) The purchaser shall be obliged to perform in due time all acts of cooperation that are contractually provided for in the contract, that are necessary or that are owed in accordance with the principles of good faith. For example, the purchaser shall be obliged to issue a confirmation of receipt in accordance with the statutory provisions and without being requested to do so. The parties shall undertake to cooperate trustfully and shall mutually support each other, for example in the settlement of warranty claims.

(3) We shall be permitted to set for the purchaser a reasonable deadline for the performance of an act of cooperation. After the expiration of that deadline without the desired result, we shall be permitted to rescind the contract.

(4) Unless otherwise stipulated in these TCSD, the purchaser shall be liable in accordance with the statutory provisions. If the purchaser owes damages instead of the performance, we shall be permitted to demand lump-sum damages in the amount of 15% of the performance unless the purchaser proves a lower amount of loss. The right to assert a greater damage in accordance with the statutory provisions shall remain reserved.

§ 7 Reservation of title

(1) Our deliveries shall be subject to a reservation of title. We shall reserve the title to the delivered goods until the purchase price and all other existing debts or (at the time of the conclusion of the contract) future debts (including all balance claims related to the current account) against the purchaser that arise from the business relationship have been completely paid. The ownership of the goods shall be automatically transferred to the purchaser if the purchase price has been paid and there are no further claims arising from the business relationship (extended reservation of title).

(2) Any possible treatment or processing of the goods that are subject to the reservation of title by the purchaser shall always be carried out on our behalf as processor as defined by Section 950 of the German Civil Code. If the goods that are subject to the reservation of title are processed by the purchaser, it shall hereby be agreed that the processing shall be carried out in our name and for our account as manufacturer and that we shall directly acquire the ownership of the newly created item. If the goods will be processed together with other items that are not in our ownership, we shall acquire co‑ownership of the new item at the ratio of the value of the goods that are subject to the reservation of title (invoice value including VAT) to the other processed items at the time of processing. If the goods that are subject to the reservation of title will be inseparably combined or mixed with other items that are not in our ownership, we shall acquire co‑ownership of the new item at the ratio of the value of the goods that are subject to the reservation of title (final invoice value including VAT) to the other combined or mixed items at the time when they are combined or mixed. If the goods that are subject to the reservation of title are combined or mixed in a way that the purchaser’s item is to be regarded as the main item, the purchaser and we have already agreed the purchaser shall transfer the co-ownership of this item to us on a pro-rata basis (in proportion to the value of the raw materials). We hereby declare the acceptance of this transfer. The provisions governing goods that are subject to the reservation of title shall apply with the necessary modifications to the products resulting from the processing, mixing or combining, if they are in our ownership.

(3) The purchaser shall be obliged to treat the goods that are subject to the reservation of title with care at their expense, to keep them carefully for us and to insure them adequately against the usual risks (e.g. theft, breakage, fire, water) in order to cover the replacement value and shall prove, upon request, the conclusion and existence of the insurance contract. We shall be permitted to insure the goods that are subject to the reservation of title at the purchaser’s expense. We shall be permitted to request at any time that the purchaser creates an inventory of the goods delivered by us at their respective storage location and shall mark the goods as being in our ownership. The purchaser has already transferred to us, as security, any insurance claims as well as claims against third parties based on damage, destruction, theft or loss of the goods. We hereby accept this transfer.

(4) The purchaser shall notify us without delay of seizures and other impairments of our rights by third parties.

(5) The purchaser shall be permitted so sell the goods that are subject to the reservation of title in the in the ordinary course of business. Pledges and transfers of title for security purposes shall only be permitted with our prior written consent. The permission shall expire automatically if the purchaser is in default in payment, the opening of insolvency proceedings against the purchaser’s assets has been applied for or the purchaser is obliged to apply for insolvency proceedings. In the case of a resale of the goods that are subject to the reservation of title on credit, the purchaser shall be obliged to sell the goods only against sufficient securities (e.g. agreement on an own reservation of title, etc.).

(6) The purchaser has already assigned to us, as security and in the amount of the share that corresponds to our ownership share, any receivables from third parties arising from the resale of goods that are subject to the reservation of title. Furthermore, the assignment shall be limited to a maximum of the amount of the invoice value of our receivables (including VAT) to which we are entitled in relation to the purchaser and that are arising from the business relationship at the time of the resale, plus a security surcharge amounting to 20%.

(7) The purchaser shall be authorised to collect the sums due of the receivables assigned to us that are related to the resale. In each case, the proceeds that we are entitled to shall be forwarded to us immediately upon receipt. Upon our request, the purchaser shall notify us of the names of the debtors of the relevant assigned receivables and notify the debtors of the assignment. We shall be authorised to notify the customers of the assignment also in the purchaser’s name. The authorisation to collect the sums due shall automatically lapse if the purchaser is in default in payment, if the opening of insolvency proceedings against the purchaser’s assets has been applied for or if the purchaser is obliged to apply for insolvency proceedings.

(8) Notwithstanding any automatic lapse, we shall be permitted to revoke the authorisation to resell and/or further process and/or the authorisation to collect the sums due if the purchaser violates their obligations in relation to us, in particular fails to properly fulfil their payment obligations arising from the business relationship, enters into default in payment or infringes their duties as seller of goods that are subject to the reservation of title or if it becomes apparent, subsequent to the conclusion of the contract, that our payment claims arising from the business relationship with the purchaser are jeopardised by the purchaser’s lack of performance capability. If the authorisation to collect the sums due lapses, the purchaser shall submit to us the information regarding the receivables that is required for the collection and to support us in the collection process (if applicable).

(9) Furthermore, we shall be permitted rescind the relevant contract in accordance with the statutory provisions if the purchaser infringes the contract. Alternatively, and provided that the conditions for the rescission are met, we shall also be permitted to demand only the return of the goods and to expressly reserve our right to rescind the contract. If such an express reservation of the right to rescind the contract is not declared, the demand for the return of the goods shall be deemed to constitute a declaration of the rescission. The same shall apply if we seize the goods that are subject to the reservation of title. The transport costs incurred for the return shall be borne by the purchaser. We shall be entitled to realise the goods that are subject to the reservation of title and that were returned to us. The proceeds of the realisation shall be offset against the amounts owed to us by the purchaser after we have deducted a reasonable amount for the costs of the realisation.

(10) The purchaser shall inform us without delay after becoming aware of any third-party access to the goods that are subject to the reservation of title and shall provide us with all information and documents necessary for an intervention. The purchaser shall be liable for the costs incurred due to the termination of the third-party access, in particular by filing a Drittwiderspruchsklage [a third-party action against enforcement measures under the German rules of civil procedure], to the extent that these costs cannot be obtained from the creditor initiating the enforcement.

§ 8 Quality of the goods, warranty

(1) Information regarding the quality of goods shall not constitute any guarantees. A guarantee shall be deemed to be granted only if it has been expressly designated as such in writing and while using this term.

(2) We shall not be liable for any defects based on the defectiveness of parts supplied to us unless we have assumed a guarantee in that respect or we have been aware of the defect or it was obvious to us. We shall not be obliged to control the quality of supplied parts.

(3) It shall be a prerequisite for any warranty claims that the purchaser meets their obligations to examine the goods and to give notice of defects. In the case of all of our performances, the purchaser shall be obliged to immediately inspect the delivery or service for defects, including incorrect deliveries and deviations in quantity. In the case of goods intended for installation or other further processing, the inspection must be carried out in any case before the processing. Obvious defects shall be communicated in writing upon delivery, if possible, but not later than on the working day following the delivery. Other defects that may be identified upon proper inspection (as defined by Section 377 of the German Commercial Code) shall be communicated in writing within five working days from the delivery. Defects which are not recognisable upon proper inspection must be communicated in writing within two working days from their discovery. The timely dispatch of the notice of defects shall be sufficient for securing the corresponding rights. If defects are not communicated in accordance with the foregoing provisions, the delivery shall be deemed to have been approved in accordance with the relevant contract. Annotations on delivery notes shall not be deemed to constitute notices of defects. Transport staff shall not be entitled to receive and accept notices of defects. The aforementioned obligations to give notice of defects shall also apply to work performances with the proviso that the acceptance instead of the delivery shall be authoritative.

(4) The purchaser shall bear the burden of proof with regard to the existence of a defect.

(5) In the case of proven defects, we shall comply with our warranty obligations, at our discretion, by means of a subsequent improvement or delivery (subsequent performance), in each case free of charge. We shall be entitled to require the purchaser to return the defective goods to us in advance for the purpose of examining the complaint and, if necessary, for a subsequent improvement or delivery. The place of performance for any subsequent performance shall be our business premises. Furthermore, we shall be permitted to request the purchaser to carry out the subsequent improvement themselves if this is reasonable for the purchaser. In such a case, we shall reimburse the purchaser for the necessary expenses.

(6) If the purchaser has installed the goods in another item or attached them to another item in accordance with their type and their contractual purpose, we shall be entitled – within the scope of the subsequent performance – to remove the defective item and to reinstall the defect-free item ourselves or to leave the removal and installation to the purchaser. In the latter case, we shall reimburse the purchaser for the expenses required for this. The purchaser shall set us a reasonable period of time during which we may remove the goods on our own responsibility. Our right to refuse the subsequent performance due to unreasonable costs shall remain unaffected. The subsequent performance shall be, in any case, unreasonable if the costs of the subsequent performance amount to more than 120% of the purchase price.

(7) If goods are returned in order to perform a subsequent improvement or delivery, the goods shall be returned without any subsequently attached accessories or equipment. We shall not assume any liability for accessories and equipment also included in the return shipment.

(8) The purchaser shall be permitted to rescind the contract or reduce the purchase price only if no subsequent performance has been attempted within a reasonable period of time set by us or if a subsequent performance is impossible, was refused, has failed or is unreasonable. The period for subsequent performance shall be at least four weeks unless there are justified interests of the purchaser to the contrary. In case of doubt, a failure of the subsequent performance shall only be assumed after the third failed attempt of a subsequent performance. The purchaser shall not be permitted to rescind the contract on the basis of insignificant defects. In addition to the statutory requirements, the special provisions of item § 9 below shall apply to claims for damages based on defects.

(9) The purchaser shall be permitted to withhold payments due to defects only to an extent that is reasonable in relation to the defects occurred.

(10) The statutory provisions governing the recourse of the purchaser in accordance with Sections 445a, 445b and 478 of the German Civil Code shall apply subject to the following provisos: Prior to a subsequent performance by way of a replacement delivery or the exchange of components, the purchaser shall inform us without delay and shall give us the opportunity to fulfil ourselves the claims based on defects asserted against the purchaser. The same shall apply if the purchaser intends to retain a third party for the subsequent performance by way of a subsequent improvement. Expenses incurred by the purchaser without a legal obligation in relation to their customer, in particular as a gesture of goodwill, shall be reimbursed only if we have agreed to the relevant measure in advance. A recourse on the part of the purchaser shall be excluded if an item is installed that is not intended for installation. Claims asserted in the scope of a recourse against a supplier shall be excluded in any case if the defective goods have been further processed by the purchaser or another businessperson, e.g. by installing them into another product or by connecting them inseparably with another product. For handling recourse claims, at least the original sales receipt of the resale and, in the case of vehicles, the original protocol of the handover to the purchaser’s customer shall be required to be presented and the defective goods / parts shall be returned. We shall be permitted top request further proof.

§ 9 Rights of rescission and purchaser’s claims for damages

(1) The statutory provisions shall apply to the right to rescind the contract with the proviso that the purchaser shall be permitted to rescind the contract due to a breach of duty not consisting a defect only if we are liable for that breach of duty.

 

(2) We shall be liable for a damage, in principle and if the other requirements of the relevant claim are met, only if intent or gross negligence are imputable to us. In the case of simple negligence, we shall be liable if we have violated a duty the fulfilment of which enables the proper performance of the contract in the first place and the compliance with which the purchaser may usually rely on (so-called cardinal duty). In other respects, a liability for damages of any kind, irrespective of the basis for that claim, including a liability for a fault upon the conclusion of the contract, shall be excluded.

(3) If we are liable for slight negligence, our liability shall be limited to the damage that is typical for the relevant contract and foreseeable upon the conclusion of the contract. In the case of slight negligence, there shall be no liability for any indirect or consequential damage.

(4) In the case of a damage caused by a delay, we shall be liable for a maximum of 5% of the value of the performance affected by the default.

(5) The aforementioned exclusions and limitations of liability shall not apply if we are liable on the basis of intent or gross negligence, if we have assumed a guarantee, to a damage to be compensated in accordance with the German Product Liability Law [Produkthaftungsgesetz, ProdHaftG] and to injury to life, body or health.

(6) The aforementioned exclusions and limitations of liability shall also apply for the favour of our employees, performing agents [Erfüllungsgehilfen] and other third parties that we work with in order to fulfil the relevant contract.

§ 10 Limitation periods

(1) The limitation period for claims based on defects shall amount to one year from the date of the delivery.

(2) Other contractual claims of the purchaser based on violations of duties shall become statute-barred after one year. This shall not apply to the purchaser’s right to rescind the contract on the basis of a violation of a duty that we are liable for and that does not constitute a defect.

(3) Deviating therefrom, the statutory limitation periods shall apply to the following claims of the purchaser:

–     claims for damages based on a product liability, an injury to life, body or health or a violation of an essential contractual duty and claims based on any other damage due to an intentional or grossly negligent violation of a duty by us or our performing agents;

–     recourse claims in accordance with Section 445b, subsection 1 of the German Civil Code;

–     claims based on the fraudulent concealment of a defect.

(4) Our claims against the purchaser shall become statute-barred in accordance with the statutory provisions.

§ 11 Governing law, place of performance and jurisdiction

(1) The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

(2) The place of performance shall be Hoya.

(3) In the scope of legal transactions with businesspersons, the parties have agreed that Hoya shall be the exclusive place of jurisdiction regarding actions brought against us. We shall also be permitted to bring actions at the purchaser’s general place of jurisdiction.

(4) If individual provisions of the relevant contract including these TCSD should be or become completely or partially invalid, the validity of the other provisions shall remain unaffected thereby. In such a case, the completely or partially invalid provision shall be replaced by a provision the economic purpose of which most approximates the one of the invalid provision.