General Terms and Conditions

General Terms of Delivery and Payment of masetec GmbH

§ 1 Applicability

(1) All deliveries, services, and offers by masetec GmbH, Philosophenweg 1, 90518 Altdorf (hereinafter referred to as “Supplier”) are made exclusively on the basis of these General Terms of Delivery. These are an integral part of all contracts concluded by the Supplier with its contractual partners (hereinafter also referred to as “Buyer”) regarding the deliveries or services offered by the Supplier. They also apply to all future deliveries, services, or offers to the Buyer, even if they are not separately agreed upon again. The Supplier only concludes contracts if the Buyer is an entrepreneur (§ 14 German Civil Code (BGB)), a legal entity under public law, or a special fund under public law (§ 310 para. 1 sentence 1 BGB). No contracts are concluded with consumers (§ 13 BGB).

(2) The Buyer’s or third parties’ terms and conditions shall not apply, even if the Supplier does not separately object to their applicability in individual cases. Even if the Supplier refers to a letter that contains or refers to the Buyer’s or a third party’s terms and conditions, this does not imply agreement with the applicability of those terms and conditions.

§ 2 Offer and Conclusion of Contract

(1) All offers from the Supplier are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The Supplier may accept orders within fourteen days of receipt.

(2) The concluded purchase contract, including these General Terms of Delivery, is solely decisive for the legal relationship between the Supplier and the Buyer. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by the Supplier before the conclusion of this contract are legally non-binding, and oral agreements between the contracting parties are replaced by the written contract, unless it expressly states that they remain binding.

(3) Additions and amendments to the agreements made, including these General Terms of Delivery, require text form to be effective. With the exception of managing directors or authorized signatories, the Supplier’s employees are not authorized to make deviating oral agreements.

(4) Information provided by the Supplier regarding the subject of the delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations thereof (e.g., drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but rather descriptions or designations of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided they do not impair the usability for the contractually intended purpose.

(5) The Supplier reserves ownership and copyright of all offers and cost estimates submitted by it, as well as drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids provided to the Buyer. The Buyer may not make these items accessible to third parties, either as such or in terms of content, disclose them, use or reproduce them themselves or through third parties, without the express consent of the Supplier. Upon the Supplier’s request, the Buyer must return these items completely to the Supplier and destroy any copies made if they are no longer required by the Buyer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

§ 3 Prices and Payment

(1) Prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Prices are in EURO ex works plus packaging, statutory value-added tax, customs duties for export deliveries, as well as fees and other public charges.

(2) Insofar as the agreed prices are based on the Supplier’s list prices and delivery is to take place more than four months after the conclusion of the contract, the Supplier’s list prices valid at the time of delivery shall apply (in each case minus an agreed percentage or fixed discount).

(3) Invoice amounts are payable within thirty days without any deduction, unless otherwise agreed in text form. The date of receipt by the Supplier is decisive for the date of payment. Checks are only considered payment after they have been cashed. If the Buyer fails to pay on the due date, the outstanding amounts shall bear interest at 5% p.a. from the due date; the right to claim higher interest and further damages in case of default remains unaffected.

(4) Offsetting against counterclaims of the Buyer or withholding payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.

(5) The Supplier is entitled to execute or render outstanding deliveries or services only against advance payment or security if, after the conclusion of the contract, circumstances become known to the Supplier that are likely to significantly reduce the Buyer’s creditworthiness and thereby jeopardize the payment of the Supplier’s outstanding claims by the Buyer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

§ 4 Delivery and Delivery Time

1) Deliveries are made ex works.

(2) Deadlines and dates for deliveries and services indicated by the Supplier are always approximate, unless a fixed deadline or date has been expressly promised or agreed upon. If dispatch has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier, or other third party commissioned with the transport.

(3) The Supplier may – without prejudice to its rights arising from the Buyer’s default – demand from the Buyer an extension of delivery and service periods or a postponement of delivery and service dates for the period during which the Buyer fails to fulfill its contractual obligations to the Supplier.

(4) The Supplier is not liable for impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other unforeseeable events at the time of contract conclusion (e.g., business disruptions of all kinds, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the non-delivery, incorrect or untimely delivery by suppliers) for which the Supplier is not responsible. If such events make delivery or service significantly more difficult or impossible for the Supplier and the impediment is not merely of temporary duration, the Supplier is entitled to withdraw from the contract. In the case of temporary impediments, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the period of the impediment plus a reasonable start-up period. Insofar as the Buyer cannot reasonably be expected to accept the delivery or service due to the delay, the Buyer may withdraw from the contract by immediate written declaration to the Supplier.

(5) The Supplier is only entitled to partial deliveries if

  • the partial delivery is usable for the Buyer within the scope of the contractual purpose,

  • the delivery of the remaining ordered goods is ensured, and

  • the Buyer does not incur significant additional effort or costs as a result (unless the Supplier agrees to bear these costs).

(6) If the Supplier is in default with a delivery or service or if a delivery or service becomes impossible for any reason whatsoever, the Supplier’s liability for damages shall be limited in accordance with § 8 of these General Terms of Delivery.

§ 5 Place of Performance, Shipment, Packaging, Transfer of Risk, Acceptance

(1) The place of performance for all obligations arising from the contractual relationship is Altdorf near Nuremberg, unless otherwise specified. If the Supplier also owes installation, the place of performance is the location where the installation is to take place.

(2) The method of shipment and packaging are subject to the Supplier’s dutiful discretion.

(3) The risk passes to the Buyer at the latest upon handover of the delivery item (where the start of the loading process is decisive) to the forwarding agent, carrier, or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if the Supplier has undertaken other services (e.g., shipping or installation). If shipment or handover is delayed due to a circumstance for which the Buyer is responsible, the risk passes to the Buyer from the day on which the delivery item is ready for shipment and the Supplier has notified the Buyer thereof.

(4) Storage costs after the transfer of risk shall be borne by the Buyer. For storage by the Supplier, storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per elapsed week. The right to claim and prove further or lower storage costs remains reserved.

(5) The shipment will only be insured by the Supplier against theft, breakage, transport, fire, and water damage or other insurable risks at the express request of the Buyer and at the Buyer’s expense.

(6) Insofar as an acceptance is to take place, the purchased item shall be deemed accepted if

  • the delivery and, if the Supplier also owes the installation, the installation is completed,

  • the Supplier has notified the Buyer of this, referring to the deemed acceptance, and has requested acceptance from the Buyer,

  • twelve working days have passed since delivery or installation, or the Buyer has started using the purchased item (e.g., has put the delivered system into operation) and in this case six working days have passed since delivery or installation, and

  • the Buyer has failed to accept within this period for any reason other than a defect notified to the Supplier that makes the use of the purchased item impossible or significantly impairs it.

§ 6 Warranty, Material Defects

(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.

(2) The delivered items must be carefully inspected immediately after delivery to the Buyer or to the third party designated by the Buyer. They shall be deemed approved if a written notice of defect regarding obvious defects or other defects that were recognizable upon immediate, careful inspection has not been received by the Supplier within seven working days after delivery of the delivery item or otherwise within seven working days after discovery of the defect or any earlier point in time at which the defect was recognizable to the Buyer during normal use of the delivery item without further investigation. Upon the Supplier’s request, the complained-about delivery item must be returned to the Supplier carriage free. In the event of a justified notice of defect, the Supplier shall reimburse the costs of the cheapest shipping method; this does not apply insofar as the costs increase because the delivery item is located at a place other than the place of intended use.

(3) In the event of material defects in the delivered items, the Supplier is initially obliged and entitled, at its discretion to be exercised within a reasonable period, to either rectify the defect or provide a replacement delivery. In the event of failure, i.e., impossibility, unreasonableness, refusal, or unreasonable delay of rectification or replacement delivery, the Buyer may withdraw from the contract or reasonably reduce the purchase price.

(4) If a defect is due to the Supplier’s fault, the Buyer may claim damages under the conditions specified in § 8.

(5) In the case of defects in components from other manufacturers that the Supplier cannot remedy for reasons of licensing law or factual reasons, the Supplier shall, at its option, assert its warranty claims against the manufacturers and suppliers on behalf of the Buyer or assign them to the Buyer. Warranty claims against the Supplier for such defects exist under the other conditions and in accordance with these General Terms of Delivery only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or, for example, due to insolvency, is hopeless. During the duration of the legal dispute, the statute of limitations for the Buyer’s relevant warranty claims against the Supplier is suspended.

(6) The warranty is void if the Buyer changes the delivery item or has it changed by third parties without the Supplier’s consent, and the rectification of the defect is thereby rendered impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of defect rectification resulting from the change.

(7) A delivery of used items agreed with the Buyer in an individual case is made under exclusion of any warranty for material defects.

§ 7 Intellectual Property Rights

(1) The Supplier warrants, in accordance with this § 7, that the delivery item is free from third-party industrial property rights or copyrights. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.

(2) In the event that the delivery item infringes a third party’s industrial property right or copyright, the Supplier shall, at its option and expense, modify or replace the delivery item in such a way that no third-party rights are infringed, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the Buyer by concluding a license agreement. If the Supplier fails to do so within a reasonable period, the Buyer is entitled to withdraw from the contract or to reasonably reduce the purchase price. Any claims for damages by the Buyer are subject to the limitations of § 8 of these General Terms of Delivery.

(3) In the event of infringements of rights by products of other manufacturers supplied by the Supplier, the Supplier shall, at its option, assert its claims against the manufacturers and upstream suppliers on behalf of the Buyer or assign them to the Buyer. Claims against the Supplier in these cases exist in accordance with this § 7 only if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or, for example, due to insolvency, is hopeless.

(4) Patent law restrictions may apply to the export of neodymium magnets to the USA, Canada, and Japan. The Buyer shall check whether such restrictions exist before exporting to these countries. The Supplier’s liability for the existence of such rights is excluded. The preceding provisions of paragraphs (1), (2), and (3) do not apply in these cases.

§ 8 Liability for Damages Due to Fault

(1) The Supplier’s liability for damages, regardless of the legal reason, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and tort, is limited in accordance with this § 8, insofar as fault is relevant in each case.

(2) The Supplier is not liable in cases of simple negligence by its organs, legal representatives, employees, or other vicarious agents, unless it concerns a breach of essential contractual obligations. Essential contractual obligations are the obligation to timely deliver and install the delivery item free of significant defects, as well as advisory, protective, and custodial duties intended to enable the Buyer to use the delivery item in accordance with the contract or to protect the life or limb of the Buyer’s personnel or to protect its property from significant damage.

(3) Insofar as the Supplier is liable for damages in principle according to § 8 (2), this liability is limited to damages that the Supplier foresaw as a possible consequence of a breach of contract at the time of contract conclusion or that it should have foreseen with the application of customary care. Indirect damages and consequential damages resulting from defects of the delivery item are furthermore only compensable insofar as such damages are typically to be expected with the intended use of the delivery item.

(4) In the event of liability for simple negligence, the Supplier’s obligation to compensate for property damage and resulting further financial losses is limited to an amount of €1,000,000.00 per claim, even if it concerns a breach of essential contractual obligations.

(5) The foregoing exclusions and limitations of liability apply to the same extent in favor of the Supplier’s organs, legal representatives, employees, and other vicarious agents.

(6) Insofar as the Supplier provides technical information or acts in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by it, this is done free of charge and under exclusion of any liability.

(7) The limitations of this § 8 do not apply to the Supplier’s liability for intentional conduct, for guaranteed quality features, for injury to life, body, or health, or under the Product Liability Act.

§ 9 Retention of Title

(1) The retention of title agreed below serves to secure all existing current and future claims of the Supplier against the Buyer arising from the delivery relationship between the contracting parties concerning the contractual products delivered by the Supplier in accordance with its offer (including balance claims from a current account relationship limited to this delivery relationship).

(2) The goods delivered by the Supplier to the Buyer remain the property of the Supplier until full payment of all secured claims. The goods, as well as the goods covered by the retention of title that replace them under this clause, are hereinafter referred to as reserved goods.

(3) The Buyer shall store the reserved goods free of charge for the Supplier.

(4) The Buyer is entitled to process and sell the reserved goods in the ordinary course of business until the realization event occurs (paragraph 9). Pledging and security assignments are inadmissible.

(5) If the reserved goods are processed by the Buyer, it is agreed that the processing is carried out in the name and for the account of the Supplier as manufacturer, and the Supplier directly acquires ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in proportion to the value of the reserved goods to the value of the newly created item. In the event that such acquisition of ownership by the Supplier should not occur, the Buyer hereby assigns its future ownership or – in the aforementioned proportion – co-ownership of the newly created item to the Supplier as security. If the reserved goods are combined with other items to form a single item or are inseparably mixed, and one of the other items is to be regarded as the main item, the Supplier, insofar as the main item belongs to it, transfers co-ownership of the single item to the Buyer proportionally in the ratio specified in sentence 1.

(6) In the event of resale of the reserved goods, the Buyer hereby assigns, by way of security, the resulting claim against the purchaser – in the case of co-ownership of the reserved goods by the Supplier, proportionally corresponding to the co-ownership share – to the Supplier. The same applies to other claims that replace the reserved goods or otherwise arise with respect to the reserved goods, such as insurance claims or claims from tort in case of loss or destruction. The Supplier revocably authorizes the Buyer to collect the claims assigned to the Supplier in its own name. The Supplier may revoke this collection authorization only in the event of realization.

(7) If third parties access the reserved goods, in particular through seizure, the Buyer shall immediately point out the Supplier’s ownership and inform the Supplier thereof to enable the Supplier to enforce its ownership rights. If the third party is unable to reimburse the Supplier for the judicial or extrajudicial costs incurred in this context, the Buyer shall be liable to the Supplier for these costs.

(8) The Supplier shall release the reserved goods as well as the items or claims replacing them upon request, at its discretion, insofar as their value exceeds the amount of the secured claims by more than 50%.

(9) If the Supplier withdraws from the contract due to the Buyer’s breach of contract – in particular payment default – (realization event), it is entitled to demand the return of the reserved goods.

§ 10 Withdrawal and Right of Retention

(1) If the Buyer is in default with the fulfillment of its contractual obligations, the Supplier, without prejudice to its other contractual claims and rights, is entitled to withhold further fulfillment of its obligations for the period it deems appropriate.

(2) If the Supplier has objectively justified doubts about the Buyer’s solvency, the Supplier is entitled to suspend all contractual obligations based on it until the Buyer provides sufficient security.

(3) If one of the parties fails to fulfill its obligations even after a corresponding written request within a reasonable period, the other party is entitled to terminate the contract without any claims for damages arising for either party against the other.

(4) In cases where the Buyer ceases its operations, a judicial liquidation procedure or liquidation of the Buyer’s assets is carried out, an insolvency proceeding (or an application for such) is carried out or filed regarding the Buyer’s assets, and/or the country in which its establishment is located is placed on a sanctions list, the Supplier is entitled to suspend the fulfillment of its obligations or to withdraw from the contract, without this leading to an obligation to pay damages.

(5) In all the aforementioned cases in which the Supplier suspends the fulfillment of its obligations or terminates the contract, the Buyer shall be liable to the Supplier for all consequential damages.

§ 11 Export Control, Buyer’s Obligations

(1) The Buyer undertakes to refrain from the following transactions in connection with our services:

  • With persons, organizations, or institutions listed on a sanctions list according to EU regulations or US export regulations;

  • With embargoed states;

  • For which the required authorization is not available; and

  • Which may be related to WMDs or military end-use.

(2) The Buyer further assures, in particular, not to sell, export, or re-export goods delivered, insofar as they are subject to the provisions of Art. 12g Regulation (EU) 833/2014 or Art. 8g Regulation (EC) 765/2006, either directly or indirectly to the Russian Federation or Belarus or for use in the Russian Federation or Belarus.

(3) The Buyer shall make every reasonable effort to ensure that the foregoing provisions under paragraphs 1 and 2 are not frustrated by third parties in the further trade chain, in particular not by potential resellers.

(4) The Buyer must establish and maintain an appropriate monitoring mechanism to prevent circumvention of the provisions under paragraphs 1, 2, and 3 by third parties in the further trade chain or by potential resellers.

(5) Any violation of the foregoing provisions of paragraphs 1, 2, 3, 4 constitutes a material breach of contract and entitles us to terminate the delivery relationship with immediate effect and to immediately cancel already confirmed orders. Furthermore, the Buyer shall indemnify us from all costs, third-party claims, and other disadvantages (e.g., fines) due to the violation of an obligation under the foregoing provisions. This does not apply if the Buyer is not responsible for this breach of duty. Furthermore, we are entitled to demand a contractual penalty from the Buyer in the amount of 5% of the sales price of the goods sold contrary to the provisions of this regulation. Any further existing claims for damages remain unaffected.

(6) The Buyer is obliged to inform us of all violations of the provisions of paragraphs 1, 2, 3, and 4. The Buyer shall provide all information regarding compliance with the obligations under paragraphs 1, 2, 3, and 4 within two weeks upon request.

(7) We will inform the competent authority of all violations of the provisions of the foregoing paragraphs 1, 2, 3, and 4.

§ 12 Export Regulations

(1) We reserve the right to examine export law provisions and deliver subject to any necessary official authorization (e.g., an export license). We will make all reasonable efforts to obtain any necessary official authorization. However, we do not guarantee that the required official authorization will be granted to us. The Buyer undertakes to assist us in obtaining such authorization and to provide us with necessary documents and information within a reasonable period.

(2) Should the official authorizations required for the execution of the contract not be granted to us within a reasonable time, but at the latest within 12 months after the conclusion of this contract, or should the Buyer fail to provide us with the documents required for the authorization even after a reasonable grace period, we are entitled to withdraw from the contract. If services have already been rendered by us at the time of the declaration of withdrawal and at the Buyer’s request, we retain a claim for proportional remuneration.

(3) In the event that the required authorization, as described above, is not granted, any claim for damages or reimbursement of expenses is excluded, unless the respective party against whom such a claim is asserted is responsible for the non-granting of the authorization. § 12 para. 5 sentence 2 applies accordingly in this case.

(4) The procurement of any necessary import authorization is the responsibility of the Buyer.

(5) The Buyer undertakes to carry out all necessary inspection measures (sanctions lists, end-use, embargo regulations, etc.) before exporting goods supplied directly or indirectly by us, to comply with national, international, and in particular US (re-)export control regulations, and to obtain the corresponding authorizations from the competent authorities at its own expense if necessary. The Buyer is not entitled to return goods or claim damages if an export license is officially denied.

§ 13 Compliance and Ethical Conduct

As a fair competitor in a free market, we are committed to supporting the protection of international human rights, compliance with employee protection rights, environmental protection, and the fight against international corruption with honesty, fairness, and legal compliance.

We expect the same from the Buyer. Therefore, the Buyer undertakes to comply with all applicable laws at all times. Furthermore, the Buyer undertakes to ensure that it and its employees act in a legally compliant manner.

§ 15 Traceability

If the Buyer passes on the goods supplied by us to third parties, it shall ensure the traceability of the goods through suitable measures. In particular, it shall ensure that in the event of a measure becoming necessary for product liability reasons (e.g., product recall, product warning), the delivered goods can be located and their last buyer can be reached immediately regarding such measures.

If the Buyer does not pass on the goods supplied by us to third parties but uses or consumes them in its own operations, it shall also ensure that in the event of a necessary measure according to sentence 2, goods still in stock or in use can be located.

§ 16 Data Protection

(1) The responsibility for the data processed by the respective parties lies solely with the party processing the data. The parties mutually guarantee that the content, use, and/or processing of the data are not unlawful and do not infringe the rights of third parties. In particular, the processing and protection of personal data must comply with applicable laws and regulations, especially the EU General Data Protection Regulation (GDPR).

(2) Furthermore, the respective parties guarantee that the use, storage, and/or processing of confidential information is confidential and complies with applicable rights and obligations regarding confidentiality and personal rights.

§ 17 Confidentiality and Intellectual Property

(1) The parties are obliged to treat all commercial and technical information as well as know-how, such as information on products, prices, customers, and suppliers (hereinafter: “Confidential Information”), confidentially, both during and after the fulfillment of their obligations.

(2) All intellectual property rights to the goods and/or services produced during the fulfillment of a contract and/or supplied by the Supplier, including, but not limited to, all copyrights, database rights, and design rights, know-how rights, patents, and invention rights, information, content, materials, data, or processes (in all cases, regardless of whether registered or not, and including all rights to apply for their registration), belong to the Supplier, remain with the Supplier, and/or become the Supplier’s property. All data carriers containing intellectual property and/or confidential information remain or become the property of the Supplier and may not be copied, disclosed to third parties, or used in any other way without express permission, regardless of whether the Buyer has paid costs for the creation or provision of this information. The Buyer shall return these carriers to the Supplier upon the Supplier’s first written request.

(3) The Supplier is entitled to name the user as a reference.

(4) If and to the extent necessary, the Buyer is hereby granted a license by the Supplier to use the goods and services.

§ 18 Place of Jurisdiction, Applicable Law

(1) The place of jurisdiction for all possible disputes arising from the business relationship between the Supplier and the Buyer is, at the Supplier’s discretion, Nuremberg or the Buyer’s registered office. For lawsuits against the Supplier, Nuremberg is the exclusive place of jurisdiction. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation.

(2) The relations between the Supplier and the Buyer are governed exclusively by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.

§ 19 Final Provisions

(1) Should individual provisions of these terms of sale be or become invalid, the validity of the remaining provisions shall not be affected. In such a case, the contracting parties undertake to replace the invalid or unenforceable provision with a valid or enforceable provision that comes closest to the economically intended purpose. The same applies to filling contractual gaps. Should a partial clause be or become invalid, the validity of the remaining clause remains unaffected, insofar as its content is separable from the partial clause, is otherwise understandable on its own, and results in a remaining meaningful regulation within the overall structure of the contract.

(2) The contracting parties are mutually obliged to take all reasonable measures necessary to achieve the purpose pursued by the contract and to refrain from anything that would impair the achievement and maintenance of the contract.

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