General Terms and Conditions of Sale (GTCS)

of Kleinmetall GmbH for commercial business transactions
(Last updated Juli 2024)

I. General - Scope

1. Our General Terms and Conditions of Sale (GTCS) shall apply for all our business relationships with our customers (hereinafter "Customer"), however only if the Customer enters into a business relationship with us as a contractor within the meaning of Section 14 of the German Civil Code (BGB) or is a legal person under public law or a separate estate under public law.
2. Our GTCS shall apply in particular to contracts pertaining to the sale of movables (hereinafter also "Merchandise"), irrespective of whether we manufacture the Merchandise ourselves or purchase it from suppliers (Sections 433, 651 BGB). Our GTCS shall apply in their respective version(s) as a framework agreement, including for future contracts pertaining to the sale and/or supply of movables with the same Customer, without our having to refer to them again in each individual case.
3. Our GTCS shall apply exclusively. Any differing, contradictory or supplementary General Terms and Conditions of the Customer shall only form part of the contract if we have expressly approved their validity. This requirement for approval applies in all cases, for example, even if we deliver without reservation in full knowledge of the General Terms and Conditions of the Customer.
4. Individual agreements and information in our order confirmation take precedence over the GTCS. In case of doubt, commercial clauses are to be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

II. Offers, Conclusion of Contract, Product Specification

1. Our offers are subject to confirmation and are not binding. If a Customer makes an order, this shall be deemed to be a binding contract offer. Provided that nothing else results from the order, we shall have the right to accept the order within 4 weeks from the end of the calendar week in which it is dispatched by the Customer. A contract shall only come about on our written confirmation of order or on our execution of the order.
2. The supply contract concluded in writing, including these GTCS, is decisive for the supplier relationship between us and the Customer. Individual agreements made with the customer in individual cases (including ancillary agreements, additions and changes) always take precedence over these GTCS. The content of such agreements is determined by a written contract or our written confirmation. Telecommunicative transmission of the document is sufficient to satisfy the written form.
3. Information from us on the subject of the delivery or service (e.g. weights, dimensions, usage values, loading capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and figures) shall only be final insofar as the intended contractual use requires exact conformity. These shall not be considered guaranteed characteristics, rather descriptions or characterisations of the delivery or service. Customary deviations, and deviations which occur on the basis of legal regulations or represent technical improvements, and the replacement of components by equal parts shall be permitted as far as they do not impair the contractually intended use.
   The Customer is to tolerate short or excess deliveries that are customary in the trade. In addition, the Customer is to also tolerate short or excess deliveries by up to 10% with items that are delivered in large quantities and/or according to the Customer's individual specifications. Only the quantity delivered shall be charged.
4. We reserve all ownership rights and copyrights to illustrations, drawings, calculations and other documents, models, samples, tools and other resources. Such documents and items may not be passed on to third parties unless we have expressly agreed to this in writing. This particularly applies to such documents which are deemed as "confidential" regardless of whether these are available in a written or electronic form. Tools shall also remain our sole ownership if the Customer partly bears the costs of their production.
   The Customer is to return the documents and items designated in the paragraph above to us in full on request and destroy any copies that may have been made if they are no longer required by the Customer for its usual business or for its business relationship with us or if negotiations have not led to the conclusion of a contract.
5. Samples are designed to illustrate the typical final condition of the Merchandise. They do not establish any claim on the part of the Customer that the delivered Merchandise shall be the same in all aspects as this sample unless it has been expressly agreed in writing that the Merchandise shall conform precisely to the sample.

III. Prices and Payment Conditions, Place of Performance

1. Provided that nothing else has been agreed, our prices are in euros net "ex works" ("exw") 63526 Erlensee, Germany (Incoterms 2020). Shipping and packaging costs and VAT in their respective statutory amount are not included therein and are also to be borne by the Customer. For export shipments, this shall also apply for customs and other public levies.
2. We shall reserve the right to amend our prices appropriately if costs should rise or fall, after conclusion of contract, particularly as a result of wage contracts or changes to material prices or transport costs. We shall provide the Customer with proof of these on request.
3. Unless otherwise agreed, our monetary claims shall fall due 14 days after invoicing and delivery of the Merchandise or acceptance of our services. At the end of the payment term specified in the order confirmation, or otherwise as specified above, the Customer shall default without a reminder being necessary (Section 286 para. 2 no. 2 BGB).
4. The Customer is to pay interest on the debt during the default period at 9 (nine) percentage points above the basic interest rate in accordance with Section 247 BGB. This shall not affect our right to assert claims for further damages for delay. Our claim against merchants for commercial maturity interest shall also remain unaffected, Section 353 German Commercial Code (HGB).
5. The Customer shall only be permitted to offset or retain claims if its counterclaims are upheld by a court of law or are undisputed. In the event of defects, Section VII.6. sentence 2 shall remain unaffected.
6. If it is discernible after conclusion of the contract that our claim to the purchase price/remuneration is jeopardised by the Customer's deficient capacity (e.g. by a request to start insolvency proceedings), we are entitled to withdraw from the contract in accordance with the statutory provisions on refusal of performance and - if necessary, after setting a deadline (Section 321 BGB). For contracts on the production of non-fungible items (individual or special orders), we can declare our withdrawal immediately; statutory provisions on the dispensability of deadline setting shall remain unaffected.
7. The place of performance for all obligations for both Parties is our company grounds in 63526 Erlensee Germany unless another place of performance has been expressly agreed for a specific obligation to perform.

IV. Delivery, Delivery Time

1. Provided that nothing else has been agreed by the order confirmation or otherwise in writing, deliveries are "ex works" ("exw") 63526 Erlensee, Germany (Incoterms 2020). This also applies if we dispatch the Merchandise to another place on the request of the Customer.
2. Partial deliveries are permitted unless they are unreasonable for the Customer with regard to the use expressly agreed in the contract.
3. Our prospective periods and dates for deliveries and services shall only be considered approximate unless a fixed period or date has been expressly confirmed or agreed. If there is no prospective delivery period or one has not been agreed, the delivery period shall be approximately 6 weeks after concluding the contract. If shipment has been agreed, delivery periods and delivery dates shall refer to the point in time in which Merchandise is handed over to the forwarder, freight carrier or other third party entrusted with transport.
4. We can - notwithstanding our rights from the Customer's default - request an extension of the delivery and service periods from the Customer or a postponement of delivery and service dates by the timeframe in which the Customer does not fulfil its contractual obligations that are to be satisfied before delivery.
5. Our liability in the event of default is determined in Section VIII.
6. Correct and timely self-supply remains reserved.

V. Force Majeure

1. „Force Majeure“ means the occurrence of an event or circumstance that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that that party proves: (a) that such impediment is beyond its reasonable control; and (b) that it could not reasonably have been foreseen at the time of the conclusion of the contract; and (c) that the effects of the impediment could not reasonably have been avoided or overcome by the affected party.
2. In the absence of proof to the contrary, the following events affecting a party shall be presumed to fulfil conditions (a) and (b) under paragraph 1 of this Section: (i) war (whether declared or not), hostilities, invasion, act of foreign enemies, extensive military mobilisation; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) act of authority whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalisation; (v) plague, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy; (vii) general labour disturbance such as boycott, strike and lock-out, go-slow, occupation of factories and premises.
3. A party successfully invoking this Section is relieved from its duty to perform its obligations under the contract and from any liability in damages or from any other contractual remedy for breach of contract, from the time at which the impediment causes inability to perform, provided that the notice thereof is given without delay. If notice thereof is not given without delay, the relief is effective from the time at which notice thereof reaches the other party. Where the effect of the impediment or event invoked is temporary, the above consequences shall apply only as long as the impediment invoked impedes performance by the affected party. Where the duration of the impediment invoked has the effect of substantially depriving the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the contract by notification within a reasonable period to the other party. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment exceeds 120 days.

VI. Transfer of Risk, Transport, Packing

1. If delivery is to take place "ex works (exw)" 63526 Erlensee, Germany (Incoterms 2020), the risk of coincidental loss and coincidental deterioration of Merchandise transfers to the Customer at the time we inform it that the Merchandise is ready for collection. The risk shall also transfer to the Customer if it falls into default of acceptance or breaches an obligation to cooperate unless it is not responsible for the breach of duty. In these instances, we are entitled to store the Merchandise with us or a third party on the account of the Customer.
2. If the Merchandise is shipped by us on the request of the Customer, the risk shall transfer to it at the latest at the time that the Merchandise is supplied to our premises for loading. This also applies if transport takes place in our own vehicles.
3. If permitted partial deliveries take place, the transfer of risk shall apply to these.
4. The selection of the type and method of shipping, packaging and transport of Merchandise shall be at our discretion, unless otherwise agreed in writing. Shipping shall be insured against theft, breakage, damage in transit, fire and water damage or other risks only on the express request of the Customer and at its cost. See SectionX. 4. for information on the Customer's obligation to insure the Merchandise.
5. Packaging for transportation and all other packaging, in accordance with the Packaging Act, shall not be taken back; they shall become the property of the Customer, with the exception of reusable packaging and pallets. The Customer is obliged to dispose of the packaging at its own cost.

VII. Claims of the Customer for Defects

1. Statutory provisions shall apply for the rights of the Customer on account of material defects and defects of title, unless otherwise specified hereinafter. Statutory special provisions on the purchase of consumer goods (Sections 474 ff. BGB) and the rights of the Customer arising from separately given guarantees, in particular from the manufacturer shall remain unaffected in all instances.
2. The basis of our liability for defects is primarily the agreement made regarding the quality and the presumed use of the Merchandise (including accessories and instructions). An agreement regarding quality in accordance with Sentence 1 of this paragraph shall be al product descriptions and manufacturer information that are the subject of the individual contract or that were made public by us (in particular in catalogues or on our website) at the time the contract was concluded. If the quality was not agreed, it must be assessed according to the statutory provisions whether a defect exists or not (Section 434 paragraph 3 BGB). Public statements made by the manufacturer or on his behalf, in particular in advertising or on the label of the Merchandise, take precedence over statements made by other third parties.
3. In the case of Merchandise with digital elements or other digital content, we are only obliged to provide and, if necessary, update the digital content if this is expressly stated in an agreement regarding quality in accordance with paragraph 2 above. In this respect, we assume no liability for public statements made by the manufacturer or other third parties.
4. In principle, we are not liable for defects that the Customer knows about at the time of conclusion of the contract or that he does not know about due to gross negligence (Section 442 BGB). The Customer’s claims for defect presuppose that it has duly fulfilled its duties of inspection and notification of complaint (Section 377 HGB). If a deficiency arises on inspection or later, we are to be informed of this in writing immediately. Independent of these duties of inspection and notification of complaint, the Customer is to report obvious defects (including incorrect and short deliveries) on delivery thereof in writing immediately. Should the Customer neglect to carry out the proper inspection and / or notification of defects, our liability for defects that have not been reported in good time or at all shall be excluded.
5. If the delivered item is defective, we can decide whether we shall provide a supplementary performance (cure) whether by eliminating the defect (improvement) or by delivering a faultless item (replacement). Our right to refuse the selected kind of supplementary performance under the statutory conditions remains unaffected.
6. We shall have the right to make the due supplementary performance dependent on the Customer paying the due purchase price/remuneration. However, the Customer shall be entitled to retain a share of the purchase price / remuneration that is reasonable in proportion to the defect.
7. The Customer is to provide us with the time and opportunity required for the due supplementary performance, particularly to transfer the queried Merchandise for control purposes. In the event of replacement deliveries, the Customer must return the defective Merchandise to us in accordance with the statutory provisions in place. The supplementary performance does not include the removal of the defective item, nor the reinstallation if we were not originally obliged to install it.
8. Expenditure, particularly transport, infrastructure, labour and material costs as well as any dismantling and installation costs, required for the purpose of review and supplementary performance shall be borne by us in accordance with the statutory provisions and these GTCS if a defect actually exists. If a Customer's demand for repair proves to be unjustified, however, we may demand from the Customer reimbursement of the costs incurred, unless the lack of defectiveness was not recognizable to the Customer.
9. In urgent cases, e.g. if operational security is jeopardised or for the defence of disproportionate damage, the Customer has the right to eliminate the defect itself and request the objectively necessary expenditure for this. We are to be informed of such self-remedy immediately, and in advance if possible. A right to self-remedy does not exist if we would be entitled to refuse such a repair in accordance with the statutory provisions.
10. If a reasonable period set by the Customer for the supplementary performance has expired without success or is unnecessary under statutory provisions, the Customer may withdraw from the contract or reduce the purchase price / remuneration in accordance with the statutory provisions. In the case of an insignificant defect, however, there shall be no right to withdraw.
11. Claims of the Customer for reimbursement of expenses pursuant to Section 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c sentence 2, 327 para. 5, 327u BGB). Claims of the customer for damages or reimbursement of futile expenses (Section 284 BGB) shall only exist in accordance with the following Sections VIII. and IX. and shall in all other respects be excluded, even if the Merchandise is defective.

VIII. Other Liability

1. Insofar as nothing different is provided for in this GTCS including the following provisions, we shall be liable in the case of a breach of contractual and non-contractual duties in accordance with the relevant statutory provisions.
2. We shall be liable for damage - regardless of its legal basis - in the event of intent and gross negligence. In the event of slight negligence we shall only be liable for
   1. Damage from injury to life, body or health,
   2. Damage from the culpable breach of an essential contractual obligation (an obligation, the fulfilment of which is prerequisite to enable the proper implementation of the contract and upon compliance with which the contract partner regularly relies and should be able to rely); in this instance, our liability is limited to compensation for the foreseeable damage typically occurring.
3. The limitations of liability arising from paragraph 2 above shall not apply if we fraudulently hide a defect or have offered a guarantee for the properties of the Merchandise. The same applies for the Customer's claims in accordance with product liability law.
4. Due to a breach of duty which does not consist of a defect, the Customer can only withdraw or terminate the contract if we are responsible for the breach of duty. The Customer's right of termination (in particular according to Sections 650, 648 BGB) is excluded. In addition, the statutory provisions and legal consequences shall apply for withdrawal and termination.

IX. Statute of Limitations

The Customer's claims that are based on a breach of duty within the scope of a purchase contract shall uniformly fall under the statute of limitations subject to Section 479 BGB in one year after delivery of the Merchandise. This shall apply independently of whether the breach of duty is a material defect or breach of another contractual duty. Statutory statute of limitations shall be applicable for damage on account of injury to life, body or health, damage that falls under product liability law and damage that stems from intent or gross negligence. If the Merchandise has been used in its typical manner of use for construction and caused its defectiveness, statutory statute of limitations shall apply in according with Section 438 para. 1 no. 2 BGB. If the Merchandise has been used for a building in accordance with their normal use and have caused its defectiveness, the statutory limitation period pursuant to Section 438 para. 1 no. 2 BGB shall also apply. Other special statutory provisions on the statute of limitations (in particular Section 438 Para. 1 No. 1, Para. 3, Sections 444, 445b BGB) shall also remain unaffected.

X. Retention of Title

1. We retain ownership of the Merchandise delivered by us until all present and future claims from the delivery contract and an ongoing business relationship (secured claims) have been paid in full; the retention shall refer to the balance if the account relationship in question is a current account.
2. Merchandise under retention of title may not be pledged to third parties or transferred as security before the secured claims have been paid in full. The Customer is to inform us immediately in writing if and when an application for the opening of insolvency proceedings is filed or if third parties have access to Merchandise belonging to us. If the third party is not in a position to reimburse us for the court and out of court costs of a lawsuit incurred in accordance with Section 771 ZPO, the Customer shall be liable for damage to us resulting from this.
3. We have the right to withdraw under the statutory provisions of the contract and/or to demand the Merchandise on the basis of retention of title if the Customer is in breach of contract, especially for non-payment of the purchase price due. Request for surrender does not include at the same time a declaration of withdrawal; we are in fact only entitled to request the surrender of the Merchandise and reserve withdrawal. If the Customer does not pay the purchase price due, we may only assert these rights if we have given the Customer an appropriate deadline in which to pay and this has not been done or such deadline setting is dispensable in line with the statutory provisions.
4. The Customer is obliged to look after the Merchandise. It is to sufficiently insure it to its original value at its own cost against damage caused by fire, water, breakage, transport or theft and maintain this insurance for the duration of our reserved ownership.
5. The Customer is entitled to resell and/or manufacture the Merchandise under retention of title in the ordinary course of business until revoked in accordance with (c) below. In this instance, the following provisions shall apply in addition.
   1. The retention of title shall extend to the products, up to their full value, created from the manufacturing, mixing or combination of our Merchandise, whereby we shall be considered to be the manufacturers. If the property rights of third parties remain unaffected when manufacturing, mixing or combining the Merchandise, we shall acquire joint ownership in proportion to the invoice values of the manufactured, mixed or combined Merchandise. That aside, the same shall apply for the resultant product as for the Merchandise delivered under retention of title.
   2. Claims against third parties arising from the resale of the Merchandise or of the product shall be assigned by way of the security by the Customer to us here and now, or amounting to any co-ownership share pursuant to the previous paragraph. If there is a current account relationship between the Customer and the third party, the assignment refers to the recognised balance and the "causal" balance in the event of third party insolvency. We shall accept the assignment. The Customer’s obligations as set out in paragraph 2 shall also apply in consideration of the assigned claims.
   3. The Customer shall still be authorised to collect the claim alongside us. We shall endeavour not to collect the claim, as long as the Customer meets its payment obligations to us, does not enter into arrears, no application for insolvency proceedings is made, and its performance capacity is not otherwise deficient or lacking and we do not assert the retention of title by exercising the right under paragraph 3 above. However, if this is the case, we may request that the Customer disclose the claims assigned and the debtor in question, make all indications required for collection, surrender the relevant documents, and notify the debtors (third parties) of such assignment of claims. In this case, we are also entitled to revoke the Customer's authorization to resell and process the Merchandise subject to retention of title.
   4. If requested to do so by the Customer, we shall release securities at our discretion if the realisable value of the securities of our claims exceeds 10%.

XI. Claims of the Seller for Damages

1. Our right to request compensation for damages as seller is determined by the statutory provisions, unless otherwise specified in this contract. If we request compensation for damages rather than service and the Merchandise has still not been delivered or is taken back by us exercising our statutory rights, claims for damage in the amount of 25% of the purchase price can be claimed without proof. If we prove that we have incurred more damage than the lump-sum, we can request reimbursement of the remaining damage.
2. If we take back the object of purchase within the scope of the agreed retention of title or in connection with our claim for damage rather than service, we shall also be entitled to the lump-sum damage agreed in the above paragraph 1 as compensation for the expense of taking back and utilising a lump-sum of 15% of the current value of the returned Merchandise.
3. The Customer reserves the right to prove that no losses, or losses lower than the lump-sums stated in the above paragraphs 1 and 2, have been incurred.

XII. Proof in Cases of Export Delivery and Intra-Community Supply of Goods, Contractual Penalty

1. If delivery is made by us as a VAT free export delivery or contract processing of export items or VAT free community supply of goods within the meaning of Sections 4 no. 1 lit. a and b, 6, 6a, 7 German Turnover Tax Act (UStG), the Customer is obliged to transfer all written documents on our request in accordance with Sections 3 et seqq., 17a et seqq. Tax Implementation Order (UStDV) that are required to receive VAT exemption, in particular, but not exclusively
   1. An export certificate from the border customs office of a Member State of the European Union monitoring the delivery from the community area for export deliveries or contract processing of export items;
   2. in the case of intra-Community deliveries, irrespective of whether the transportation or shipment was carried out by us or the Customer to the rest of the Community territory (outside the territory of the Federal Republic of Germany), a written confirmation from the customer that the object of the delivery has reached the rest of the Community territory (confirmation of arrival). The Customer undertakes to issue an entry certificate in writing containing at least the following information:
      1. the name and address of the Customer,
      2. the quantity of the object of the delivery and the customary commercial designation, including a product identification number / product identification code,
      3. in the case of transportation by us or in the case of dispatch by us or by the Customer, the place and month of receipt of the item in the rest of the Community and, in the case of transportation of the item by the Customer, the place and month of the end of transportation of the item in the rest of the Community,
      4. the date of issue of the confirmation and
      5. the signature of the Customer or a person authorized by him to accept the Merchandise/goods. In the case of electronic transmission of the entry certificate, a signature is not required if it is recognizable that the electronic transmission has begun in the area of responsibility of the Customer or the authorized representative. In this case, the Customer undertakes, at our request, to hand over to us the signed original of the confirmation of receipt in writing if required.
2. If the Customer does not send us the requested documents before the deadline, after we have requested the transfer thereof from the Customer setting a deadline of two weeks, the Customer is obliged to pay a contractual penalty to us. The amount of the contractual penalty is the amount in euros that is equal to the VAT being cancelled on the delivery, if this would arise. The enforcement of further damages is reserved by us. The contractual penalty is calculated based on damage as a result of any officially required VAT.

XIII. Applicable Law, Place of Jurisdiction

1. For these GTCS and all legal relationships between us and the Customer, the law of the Federal Republic of Germany shall apply, excluding international and supranational (contract) law, particularly the UN Convention on Contracts for the International Sale of Goods. The preconditions and effects of the retention of title pursuant to Section X shall be subject to the laws of the respective location where the Merchandise is stored, insofar as the choice of law agreed on in favour of German law is inadmissible or invalid.
2. If the Customer is a merchant within the meaning of the German Commercial Code (HGB), legal person under public law or a separate estate under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our place of business, 63526 Erlensee, Germany. The same shall apply if the Customer is an entrepreneur within the meaning of Section 14 BGB. In all cases, however, we shall also be entitled to sue the Customer at its registered office or any other place of performance of the delivery obligation permissible in the individual case in accordance with these GTCS or an overriding individual agreement or at the general place of jurisdiction.