General Terms and Conditions of Sale and Delivery of SUTO iTEC GmbH, 79423 Heitersheim

I. Scope of Application

1. These Terms and Conditions of Sale apply to all contracts concluded between us and companies (Section 14 German Civil Code), legal entities under public law, or special funds under public law (hereinafter: the “Buyer”) concerning the delivery of goods, as well as to our corresponding offers. They also apply to all future business relationships with the Buyer, even if they are not expressly agreed again.Deviating terms and conditions of the Buyer that we do not expressly acknowledge shall not be binding upon us, even if we do not expressly object to them. These Terms and Conditions also apply if, while aware of conflicting or deviating terms of the Buyer, we execute the Buyer’s order without reservation.
2. All agreements made between the Buyer and us for the execution of the sales contracts are set out in writing in the respective contracts.

II. Offer and Conclusion of Contract

1. An order placed by the Buyer that qualifies as an offer to conclude a sales contract may be accepted by us within two weeks by sending an order confirmation or by delivering the ordered products within the same period.
2. Our offers are non-binding and without obligation unless we have expressly designated them as binding.
3. We retain ownership, copyright, and all other protective rights to all images, calculations, drawings, and other documents prepared by us or on our behalf. The Buyer may only make such documents accessible to third parties with our prior written consent, regardless of whether they are marked as confidential.

III. Terms of Payment

1. Our prices apply ex works, excluding packaging, unless otherwise stated in the order confirmation. The statutory value-added tax (VAT) is not included in our prices and will be shown separately on the invoice at the rate applicable on the date of invoicing.
2. A cash discount (Skonto) is only permissible if expressly agreed in writing between us and the Buyer. The purchase price is due for payment net (without deduction) immediately upon receipt by the Buyer of a verifiable invoice, unless another payment term results from the order confirmation. A payment is deemed made only when we have full access to the amount. In the case of cheque payments, payment is considered made only once the cheque has cleared. Partial payments or late payments do not entitle the Buyer to deduct a cash discount. Unauthorized discounts will be recharged. No cash discount will be granted on any portion of the claim settled by set-off.
3. Credit notes issued by us (e.g. from returns, complaints, or goodwill) will generally be offset against our outstanding receivables from the Buyer and will not be paid out, insofar as undisputed or judicially established claims against the Buyer are due that equal or exceed the credit amount.
4. If the Buyer falls into default of payment, the statutory provisions shall apply.
5. The Buyer is entitled to set-off—even where notices of defects or counterclaims are asserted—only if the counterclaims are legally established, recognized by us, undisputed, or are reciprocal to our claims. The Buyer is authorized to exercise a right of retention only if the counterclaim arises from the same contractual relationship.

IV. Delivery and Performance Time

1. Delivery dates or deadlines presuppose the timely receipt of all documents to be supplied by the Buyer, the necessary approvals and releases—particularly plans—as well as the Buyer’s compliance with the agreed payment terms and other obligations. If these prerequisites are not fulfilled in good time, the deadlines shall be reasonably extended. Delivery dates and deadlines that are not expressly designated or agreed by us as binding are non-binding indications only. The delivery period indicated by us begins only once the necessary technical questions have been clarified and the Buyer has properly and timely fulfilled all obligations incumbent upon it at that time.
2. We are entitled at any time to make partial deliveries and partial services, insofar as this is reasonable for the Buyer because the partial delivery is usable for the Buyer within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured, and the Buyer does not thereby incur significant additional effort or costs.
3. If the Buyer is in default of acceptance, we are entitled to demand compensation for the damage incurred and any additional expenses. The same applies if the Buyer culpably breaches duties to cooperate. Upon occurrence of default in acceptance or debtor’s delay, the risk of accidental deterioration and accidental loss passes to the Buyer. If, due to the Buyer’s delay in acceptance, a renewed calibration becomes necessary, we may charge a calibration fee of EUR 35.00 net per device, which will be credited against our additional expenses.

V. Transfer of Risk – Shipping/Packaging

1. Loading and shipment are carried out uninsured at the Buyer’s risk. We will endeavor to take into account the Buyer’s wishes and interests regarding the type and route of shipment; any additional costs arising therefrom—even in the case of agreed carriage-paid delivery—shall be borne by the Buyer.
2. We do not take back transport or any other packaging in accordance with the Packaging Ordinance, except for pallets. The Buyer shall dispose of the packaging at its own expense.
3. If shipment is delayed at the request or due to the fault of the Buyer, we will store the goods at the Buyer’s expense and risk. In this case, notification of readiness for dispatch shall be deemed equivalent to dispatch.
4. At the Buyer’s request and expense, we will insure the delivery by transport insurance.

VI. Warranty/Liability

1. If our deliveries or services prove to be defective, we are initially obliged, at our discretion, to remedy the defect by eliminating the defect or by delivering a replacement. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with statutory provisions. We bear the necessary expenses of subsequent performance within the scope of the statutory provisions, insofar as these are not increased because the contractual item is located at a place other than the intended place of use. If subsequent performance fails, the Buyer may, at its option, demand a reduction of the purchase price (abatement) or declare withdrawal from the contract. The repair shall be deemed to have failed after the second unsuccessful attempt, unless further attempts at repair are appropriate due to the nature of the item and reasonable for the Buyer. The Buyer’s right to assert claims for damages pursuant to Sections VI.4 to VI.9 remains unaffected.

2. We are entitled to make the owed subsequent performance conditional on the Buyer’s payment of the due purchase price; however, the Buyer is entitled to retain a portion of the purchase price that is reasonable in relation to the defect.
3. Claims for defects by the Buyer shall become time-barred one year after delivery of the goods to the Buyer or, where acceptance is required, from acceptance, unless we have fraudulently concealed the defect; in that case, the statutory provisions shall apply. The provisions in Section VI.9 and the statutory rules on consumer goods purchases remain unaffected.
4. For culpable breach of our essential contractual obligations, we shall be liable in accordance with the statutory provisions. Essential contractual obligations are obligations that shape the typical contractual purpose, whose fulfillment enables the proper performance of the contract in the first place and on the observance of which the contracting party regularly relies. Insofar as neither grossly negligent nor intentional conduct is attributable to us, however, we shall be liable only for the typically occurring, foreseeable damage.
5. In all other cases, we shall be liable if damage has been caused intentionally or by gross negligence by one of our legal representatives or vicarious agents. In the event of an assumed guarantee and for damages resulting from injury to life, body, or health, we shall be liable in accordance with the statutory provisions.
6. To the extent that we have given a guarantee of quality and/or durability regarding the goods or parts thereof, we shall also be liable within the scope of this guarantee in accordance with the respective guarantee conditions. For damages based on the absence of the guaranteed quality or durability but not occurring directly to the goods, we shall be liable only if the risk of such damage is evidently covered by the quality and durability guarantee.
7. Further liability is excluded regardless of the legal nature of the asserted claim; this applies in particular to tortious claims or claims for reimbursement of futile expenses in lieu of performance. Our liability under the provisions of the Product Liability Act remains unaffected. Where our liability is excluded or limited, the same shall apply to the personal liability of our employees, representatives, and vicarious agents.
8. Claims for damages by the Buyer pursuant to Sections IV.5 to IV.8 shall become time-barred within the statutory periods.
9. A claim for damages due to breach of the obligation to provide subsequent performance pursuant to Sections 437 no. 1, 439 German Civil Code exists only if, during the one-year limitation period pursuant to Section IV.4, both (a) the Buyer has requested subsequent performance and (b) we have breached our subsequent performance obligation.

VII. Reservation of Title

1. Goods delivered by us (goods subject to retention of title) remain our property until full payment has been made. Goods not fully paid before delivery remain our property until the fulfillment of all claims, including all balance claims from current account, to which we are entitled now or in the future against the Buyer. In the event of the Buyer’s breach of contract, e.g. default in payment, we have the right—after setting a reasonable deadline—to take back the goods subject to retention of title. Taking back the goods shall constitute withdrawal from the contract. If we seize the goods subject to retention of title, this shall constitute withdrawal from the contract. We are entitled to realize the goods subject to retention of title after taking them back. After deduction of a reasonable amount for realization costs, the proceeds of realization shall be offset against the amounts owed to us by the Buyer.
2. The Buyer shall handle the goods subject to retention of title with care and insure them at their own expense sufficiently at replacement value against fire, water, and theft. Maintenance and inspection work that becomes necessary shall be carried out by the Buyer in good time at their own expense.
3. The Buyer is entitled to resell and/or use the goods subject to retention of title in the ordinary course of business as long as they are not in default of payment. Pledging or transfer by way of security is not permitted. The claims arising from the resale or from any other legal grounds (insurance, tort) in respect of the goods subject to retention of title (including all balance claims from current account) are hereby assigned by the Buyer to us in full by way of security; we hereby accept the assignment. We revocably authorize the Buyer to collect the claims assigned to us for their account in their own name. The collection authorization may be revoked at any time if the Buyer does not properly fulfill their payment obligations. At our request, the Buyer shall disclose the assignment and provide us with the information and documents required for collection of the claim. The Buyer is not authorized to assign this claim for the purpose of debt collection by way of factoring unless the factor simultaneously assumes the obligation to effect the consideration directly to us in the amount of the claims as long as claims by us against the Buyer still exist.
4. Any processing or transformation of the goods subject to retention of title by the Buyer shall in any case be carried out on our behalf without committing us. If the goods subject to retention of title are processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. The same applies to the new item created by processing as to the goods subject to retention of title. In the event of the connection or inseparable mixing of the goods subject to retention of title with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the goods subject to retention of title (final invoice amount including VAT) to the other connected or mixed items at the time of connection or mixing. If the Buyer’s item is subsequently to be regarded as the principal item, the Buyer and we agree that the Buyer transfers co-ownership of this item to us on a proportional basis; we hereby accept the transfer. The Buyer shall store our sole ownership or co-ownership of an item free of charge for us. If the goods subject to retention of title are resold as part of the new item, the advance assignment agreed in Section VII.3 shall apply only up to the invoice value of the goods subject to retention of title.
5. In the event of third-party access to the goods subject to retention of title, in particular seizures, the Buyer shall point out our ownership and notify us without delay so that we can enforce our ownership rights. If the third party does not reimburse us for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for them.
6. We are obligated to release the securities to which we are entitled to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.
7. If the law of the country in which the delivery item is located does not permit the agreement of a retention of title, or permits it only in a limited form, we may reserve other rights in the delivery item. The Buyer is obligated to participate in all necessary measures (e.g. registrations) to realize the retention of title or other rights that take the place of retention of title and to protect these rights.

VIII. Force Majeure

1. If we are unable to meet the agreed delivery date due to impediments for which we are not responsible (e.g. operational disruptions, strikes, lockouts, official orders, difficulties in energy supply, delayed or failed self-supply), we will inform the Buyer without delay. In such a case, the Buyer is not entitled to withdraw from the contract.
2. If, however, it cannot be foreseen that we will be able to perform within a reasonable period, but at the latest within four months, both we and the Buyer may withdraw from the contract. The same shall apply if the impediments still exist after four months have elapsed since our notification. If the impediments were already foreseeable to us at the time the contract was concluded, we are not entitled to withdraw.

IX. Drawings, Designs, Documents, Information

1. Drawings, designs, calculations, and other documents, such as samples and models, provided by us or produced according to our specifications, remain and become our property. Without our written consent, they may neither be passed on to third parties nor used for other purposes. They must be returned to us after completion of the order or upon request.
2. In the case of deliveries according to drawings, models, or specifications of the Buyer, the Buyer shall indemnify us against all third-party intellectual property claims. In the event of breaches of contract by the Buyer, the Buyer’s intellectual property rights do not prevent us from realizing the goods.
3. Our information and recommendations are non-binding and exclude any liability unless we have expressly and in writing undertaken to provide information and recommendations. The Buyer must examine in their own test series whether a product is suitable for the Buyer’s specific applications. Our information and statements do not constitute any assurance of characteristics for our products.

X. Place of Performance, Place of Jurisdiction, Applicable Law

1. The place of performance for deliveries and payments is our registered office.
2. The place of jurisdiction for all disputes arising between us and the Buyer from the purchase contracts concluded between us and the Buyer is, insofar as the Buyer is a merchant, a legal entity under public law, or a special fund under public law, or has no general place of jurisdiction in Germany, our registered office. However, we are entitled to bring an action against the Buyer at the Buyer’s general place of jurisdiction.
3. The relations between the contracting parties shall be governed exclusively by the law in force in the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

As of July 17, 2020