General Terms and Conditions of Sale

§ 1 General

1. our terms and conditions of sale apply exclusively; we do not recognize any terms and conditions of the buyer that conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the Buyer without reservation in the knowledge that the Buyer's terms and conditions conflict with or deviate from our Terms and Conditions of Sale. Our Terms and Conditions of Sale shall also apply to all future transactions with the customer.

 

2. all agreements made between us and the buyer for the purpose of executing this contract are set out in writing in this contract.

 

3. our terms and conditions of sale only apply to entrepreneurs within the meaning of § 310 para. 1 BGB.

 

§ 2 Offer

1 Our offer is subject to change. Orders and declarations of acceptance require written confirmation to be legally effective. The same applies to supplements, amendments and ancillary agreements. Our employees are not authorized to make verbal collateral agreements or verbal assurances that go beyond the content of the written contract.

 

2. illustrations, drawings, calculations, samples, weights and dimensions and other performance data are only binding if this has been expressly agreed in writing. We reserve ownership rights and copyrights to these. This also applies to such written documents that are designated as "confidential". The customer requires our express written consent before passing them on to third parties.

 

3. we reserve the right to make minor technical changes during the validity of a catalog and a price list.

 

§ 3 Prices - Terms of payment

1. unless otherwise stated in the order confirmation, our prices are "ex works" plus VAT at the respective statutory rate. We shall be bound to the prices for 6 months, unless otherwise agreed. The prices do not include costs for packaging, freight, postage, customs, dangerous goods and security surcharges and other ancillary costs.

 

2. the deduction of discounts requires a special written agreement.

 

3. in the event of a significant change in the cost factors determining the price, e.g. material procurement costs, wage and ancillary wage costs, energy costs, we shall be entitled to increase the price proportionately if there are more than 6 months between conclusion of the contract and delivery.

 

4 Unless otherwise stated in the order confirmation/invoice, the purchase price shall be due for payment without deduction within 14 days of the invoice date. After the due date, the buyer shall be in default without a reminder. 5. all payments must be made to the bank account stated on the invoice.

 

§ 4 Collateral

1. in individual cases, we are entitled to make the fulfillment of the contract dependent on the provision of security by the buyer up to the amount of the agreed remuneration. Unless otherwise agreed, the security may be provided in the form of a cash deposit, bank guarantee or guarantee from a credit insurer.

 

2. if, after conclusion of the contract, information becomes known about a significant deterioration in the buyer's financial situation which no longer justifies the granting of credit, we shall be entitled to demand advance payment or the provision of security for claims due and/or not yet due from the contracts not yet fulfilled by us, even if payment has already been made by bill of exchange. If the customer does not comply with this request in due time, we may withdraw from the contract and claim damages. Deliveries may be refused until advance payment or provision of security has been made.

 

3. a significant deterioration in the financial circumstances of the buyer is to be assumed in particular in the event of bounced checks, bill protests, seizures, receiverships and suspensions, opening of insolvency and composition proceedings.

 

4 We are not obliged to accept bills of exchange. In the event of acceptance which is not in lieu of performance, all charges shall be borne by the customer. Payment shall not be deemed to have been made until the bill of exchange or check has been honored.

 

§ 5 Offsetting and rights of retention

The buyer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. The buyer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

 

§ 6 Delivery times

1. binding delivery dates or periods shall only be established by express written confirmation to the buyer. Unless otherwise agreed, a delivery period shall be deemed to have been met if the goods are ready for dispatch or the Buyer has been notified of readiness for delivery at the end of the period. Delivery periods shall only commence after receipt/fulfillment of all documents/actions of the Buyer required for the execution of the order. If we are in default of delivery, the buyer is obliged to first grant a reasonable grace period.

 

2. we shall not be responsible for delays in delivery and performance due to force majeure and events that make delivery significantly more difficult or impossible for us - this includes in particular strikes, lockouts, official orders, operational disruptions, etc., even if they occur at our (sub)suppliers - even in the case of bindingly agreed deadlines and dates. They shall entitle us to postpone delivery or performance for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled.

 

3. if the hindrance lasts longer than 3 months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if we are released from our obligation, the buyer cannot derive any claims for damages from this.

 

4. the buyer shall be responsible for creating the necessary conditions (in particular of a structural nature, supply lines, permits) for the installation/installation of the purchased item.

 

5. we are entitled to make partial deliveries and partial services and to deliver in advance.

 

§ 7 Transfer of risk

1. unless otherwise stated in the order confirmation, delivery "ex works" (INCOTERMS 2010) is agreed. The risk shall pass to the Buyer ex works, even if the delivery is made carriage paid or under similar clauses or including assembly or if the transport is organized and managed by us.

 

2. if dispatch is delayed for reasons for which we are not responsible, the risk shall pass to the buyer upon notification of readiness for dispatch.

 

3. if the buyer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the buyer.

 

§ 8 Warranty

1. the warranty period is 12 months, calculated from the transfer of risk.

 

2. the warranty is excluded in the event of improper use and/or handling of the purchased item, incorrect assembly and/or commissioning of the purchased item by the Buyer or third parties, normal wear and tear of the purchased item or parts of the purchased item, inadequate maintenance of the purchased item, use of unsuitable operating materials and chemical, mechanical, electromechanical or electrical influences, insofar as DEBAG is not responsible for these.

 

3. claims for defects for new spare parts can only be asserted under the warranty if these parts are installed by authorized DEBAG service contract partners or DEBAG service technicians.

 

4. claims for defects for used purchased goods are excluded from the warranty unless otherwise contractually agreed.

 

5. the buyer must inspect the goods for defects immediately after delivery. Obvious defects must be reported in writing immediately, but at least within one week of receipt of the goods, with detailed information on the nature and extent of the defects. The date of receipt by us shall be decisive for compliance with the notification period. If obvious defects are not reported, not reported in time or not reported in the correct form, warranty claims in this respect shall lapse.

 

6. other defects must be reported in writing within one week of becoming aware of them, with detailed information on the nature and extent of the defects. The date of receipt by us shall be decisive for compliance with the notification period.

 

7. minor defects that do not significantly affect the value, suitability or usability of the goods are excluded from the warranty. Our specifications in the product description are decisive for the quality of the goods. Public statements, promotions or our advertising do not constitute a contractual description of the quality of the goods.

 

8. in the event of a defect in the delivered goods, we shall be entitled to provide subsequent performance at our discretion, i.e. to remedy the defect or to make a new delivery.

 

9. if subsequent performance fails, we shall be entitled to repeat subsequent performance. In this case, we shall also decide between new delivery and rectification of defects.

 

10. if the subsequent performance finally fails, the buyer may, at his discretion, demand a reduction of the remuneration or rescission of the contract. The buyer shall not be entitled to claim damages due to the defect. This shall not apply in the case of willful breach of contract. In the event that the contract is rescinded, the buyer must allow the benefits derived to be offset.

 

§ 9 Liability

1. any further liability for damages other than that provided for in § 8 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for material damage. The limitation shall also apply if the buyer demands compensation for useless expenses instead of a claim for damages.

 

2. to the extent that our liability for damages is excluded or limited, this shall also apply to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

 

3. paragraphs 1 and 2 shall not apply if the damage was caused by a grossly negligent or intentional breach of duty or if the damage was caused by negligent or intentional injury to life, limb or health.

 

§ 10 Retention of title

1. we reserve title to the purchased item until receipt of all payments from the delivery contract and satisfaction of all claims from the business relationship with the buyer. In the event of breach of contract by the Buyer, in particular default in payment, we shall be entitled to take back the purchased item. If we take back the purchased item, this shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. After taking back the purchased item, we are authorized to sell it. The proceeds of the sale shall be set off against the buyer's liabilities, less the costs of sale.

 

2. the buyer is obliged to treat the purchased item with care, in particular he is obliged to insure it adequately at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the buyer must carry this out in good time at his own expense.

 

3. in the event of seizures or other interventions by third parties, the buyer must inform us immediately in writing so that we can file a suit in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of such an action, the buyer shall be liable for the loss incurred by us.

 

4. the buyer is entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The buyer remains authorized to collect this claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the buyer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. If the purchased item is not immediately paid for in full by the third party purchaser on resale, the purchaser is obliged to resell to the third party purchaser only subject to retention of title.

 

5. the processing or transformation of the purchased item by the buyer is always carried out for us. If the purchased item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item resulting from the processing as to the purchased item delivered under reservation of title.

 

6. if the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the buyer's item is to be regarded as the main item, it is agreed that the buyer shall transfer co-ownership to us on a pro rata basis. The buyer shall keep the sole ownership or co-ownership thus created for us.

 

7. the purchaser also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the purchased item with a property.

 

8. If the buyer is the tenant of the premises of the property in which the object of purchase is to be installed, he undertakes to also provide the consent of the property owner in advance, from which it is clear that the property owner agrees to the installation and - in the event of non-fulfillment of the purchase price claim by the buyer - dismantling of the object of purchase subject to retention of title, even if, for the purpose of dismantling and removal of the purchased item, which has not been dismantled into individual parts, it is necessary to interfere with the fabric of the building and these can be removed without causing damage, whereby the buyer must bear the costs.

 

9. we undertake to release the securities to which we are entitled at the buyer's request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 20 %; we shall be responsible for selecting the securities to be released.

 

§ 11 Place of jurisdiction, place of performance, applicable law, partial invalidity

1. place of jurisdiction is our place of business. However, we are also entitled to sue the buyer at the court of his place of residence.

 

2. unless otherwise stated in the order confirmation, our registered office in Bautzen/Stiebitz shall be the place of performance.

 

3. the law of the Federal Republic of Germany shall apply exclusively; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.

 

4. should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of the remaining provisions.

 

Bautzen, March 01, 2009