General Terms and Conditions

General Terms and Conditions of Sale and Delivery FLEXABOX – a brand of SW-Paratus GmbH

(As of: August 2020)

§ 1 Scope

1. These Terms and Conditions of Sale/Delivery (hereinafter also referred to as Terms and Conditions of Sale) apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 (1) of the German Civil Code (BGB).

2. All deliveries, services, and offers of the seller are made exclusively on the basis of these General Terms and Conditions of Sale and Delivery. These are an integral part of all contracts that the seller concludes with its contractual partners (hereinafter also referred to as “client,” “purchaser,” and/or “buyer”) for the deliveries and services it offers. They also apply to all future deliveries, services, or offers to the client, even if they are not agreed separately again.

3. We do not recognize any terms and conditions of the purchaser that conflict with or deviate from our terms and conditions of sale, unless we have expressly agreed to their validity in writing. Even if the seller refers to a letter that contains or refers to the terms and conditions of the client or a third party, this does not constitute agreement with the validity of those terms and conditions.

4. These terms and conditions of sale also apply to all future transactions with the purchaser.

5. Individual agreements made with the purchaser in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these terms and conditions of sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

6. All technical data in our catalogs and other sales documents, lists, and drawings, as well as weight, dimension, and mixture specifications, have been carefully compiled; in the event of errors, we reserve the right to make subsequent corrections.

7. It is the responsibility of the purchaser to check whether our product is suitable for the purpose specified by them.

§ 2 Offer and conclusion of contract

1. All offers made by the seller are subject to change and non-binding unless they are expressly marked as binding. The seller may accept orders or contracts within 14 days of receipt.

2. The order becomes binding for the seller (conclusion of contract) upon its written confirmation or the start of order execution.

3. The order confirmation/written purchase contract, including these General Terms and Conditions of Sale/Delivery, is solely authoritative for the legal relationship between the seller and the buyer. This fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal commitments made by the seller prior to the conclusion of this contract are not legally binding, and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they remain binding.

4. Additions and amendments to the agreements made, including these General Terms and Conditions of Sale, must be made in writing to be effective. To comply with the written form requirement agreed here, transmission by fax or telecommunication, in particular by e-mail, is sufficient, provided that these declarations are confirmed in the same text form by the other contracting party.

5. Information provided by the seller regarding the object of delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, technical or other performance data) as well as the seller’s corresponding representations regarding the aforementioned information (e.g., drawings, illustrations) are only approximate unless they are designated as binding by the seller in writing and/or unless the usability for the contractually intended purpose requires exact conformity with the information provided. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that are due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.

§ 3 Documents provided

1. We reserve ownership rights and copyrights to all documents provided to the customer in connection with the order placement, including those in electronic form, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our express written consent to do so. If we do not accept the customer’s offer within the period specified in § 2, these documents must be returned to us immediately.

2. Products ordered from us by the customer based on drawings or samples are subject to the customer’s obligation to check for any third-party property rights and not to infringe them. If, in the event of non-compliance with this obligation, a third party prohibits us from manufacturing on the basis of a property right belonging to them, or if the product cannot be used due to the infringement of the property right, we shall be entitled – without examining the legal situation and excluding all claims for damages by the customer, regardless of the legal basis to suspend production and delivery until the matter has been clarified and to demand compensation from the customer in the amount of at least 15% of the invoice value for the ordered product. The customer hereby indemnifies us against any claims for damages and other compensation claims by third parties, in particular by rights holders, upon first request. The scope of the damage also includes costs incurred by us in defending against third-party claims.

§ 4 Prices and payment

1. Unless otherwise agreed in writing, our prices are ex works, excluding packaging and plus the value-added tax applicable on the date of invoicing. Packaging costs will be invoiced separately.

2. Payment of the purchase price must be made exclusively to the account specified on the reverse side. The deduction of discounts is only permitted with a special written agreement.

3. Unless otherwise agreed, the purchase price is payable within 10 days of delivery. Interest on arrears will be charged at a rate of 9 percentage points above the respective base rate p.a. We reserve the right to claim higher damages for default.

4. Unless a fixed price has been agreed, we reserve the right to make reasonable price changes due to changes in wage, material, and distribution costs for deliveries made 3 months or more after conclusion of the contract.

§ 5 Industrial property rights/copyrights

1. The products, including descriptions and similar documents, as well as other data (drafts, drawings, certificates, software, etc.) are generally subject to industrial property rights/copyrights of the manufacturers/licensors or the seller. Unless expressly agreed otherwise in writing, the industrial property rights remain with the respective owner of the property right (manufacturer, licensor, seller) even after conclusion of the contract between the seller and the customer and are not transferred. The customer is obliged to ensure compliance with industrial property rights. In particular, such property rights on the products, documents, and/or other data may not be altered, covered, or removed by the buyer. The buyer is also obliged to inform its customers of the aforementioned property rights and license conditions of the manufacturer/licensor or the seller. The seller expressly reserves the right to assert any claims associated with this.

2. If copyrights and/or industrial property rights arise for the seller as a result of the development and/or execution of an order, these are not transferred with the sale of the delivery item. In particular, the seller is entitled to exploit these copyrights and/or industrial property rights for orders from third parties.

§ 6 Rights of set-off/retention

The customer shall only be entitled to rights of set-off if his counterclaims have been legally established, are undisputed or have been recognized by us in writing. The customer shall only be entitled to a right of retention on the basis of established, undisputed counterclaims that have been acknowledged by us in writing, or if the customer’s counterclaims underlying the right to refuse performance or right of retention are based on the contract.

§ 7 Delivery time

1. The start of the delivery period specified by us is subject to the timely and proper fulfillment of the purchaser’s obligations, in particular the clarification of all technical questions, the provision of documents to be supplied by the purchaser, the necessary approvals and releases, in particular of plans, as well as compliance with the agreed terms of payment and the fulfillment of other cooperative actions by the purchaser.

2. We reserve the right to raise the defense of non-performance of the contract. Compliance with our delivery obligation also requires the timely and proper fulfillment of the customer’s obligations and the proper delivery to us of the raw materials required for the manufacture of the delivery product. We reserve the right to raise the defense of non-performance of the contract.

3. If non-compliance with delivery deadlines is due to force majeure, e.g., strikes, lockouts, pandemics, etc., the deadlines shall be extended appropriately. Such an appropriate extension of the delivery deadlines shall also apply if we are not supplied correctly and on time (reservation of correct and timely delivery to ourselves).

4. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or payment.

5. In the event of a delay in delivery that is not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay amounting to 3% of the delivery value, but not more than 15% of the delivery value.

6. Further legal claims and rights of the customer due to a delay in delivery remain unaffected.

7. We are entitled to make partial deliveries to a reasonable extent. Deviations in terms of dimensions, weight, technical design, manufacture, and scope of the goods to be delivered are permissible within the customary product-specific tolerances. Changes that serve to improve our products technically are also deemed to have been approved by the customer.

§ 8 Transfer of risk

1. Unless otherwise stated in the order confirmation, delivery is agreed “ex works.”

2. If the goods are shipped to the customer, the risk of accidental loss or accidental deterioration of the goods shall pass to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This shall apply regardless of whether the goods are shipped from the place of performance or who bears the freight costs.

3. If the customer so desires, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.

§ 9 Retention of title/right of withdrawal

1. We retain title to the purchased item until all claims arising from the business relationship with the customer have been paid in full. The retention of title also extends to the products resulting from processing. If our goods are processed, combined, or mixed with other materials, we shall acquire co-ownership of the resulting product in proportion to the value of our goods to the value of the other materials. The transfer of ownership shall be replaced by the customer storing the goods for us free of charge with the care of a prudent businessman.

2. The customer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure it adequately at his own expense against theft, fire, and water damage at replacement value. If maintenance and inspection work has to be carried out, the customer must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must notify us immediately in writing if the delivered item is seized or subject to other interventions by third parties. If the third party is unable to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.

3. The customer is entitled to resell the goods subject to retention of title in the normal course of business. The customer hereby assigns to us any claims against the purchaser arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment applies regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the customer meets their payment obligations from the proceeds received, is not in default of payment, and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended.

4. The processing or transformation of the purchased item by the customer is always carried out in our name and on our behalf. In this case, the customer’s expectant right to the purchased item shall continue to apply to the transformed item. If the purchased item is processed with other items that do not belong to us, we shall acquire co-ownership of the new item in proportion to the objective value of our purchased item to the other processed items at the time of processing. The same applies in the event of mixing. If the mixing is carried out in such a way that the purchaser’s item is to be regarded as the main item, it is agreed that the purchaser transfers proportional co-ownership to us and holds the resulting sole ownership or co-ownership in safekeeping for us. To secure our claims against the customer, the customer also assigns to us any claims against third parties that accrue to him through the combination of the goods subject to retention of title with a piece of real estate; we hereby accept this assignment.

5. We undertake to release the securities to which we are entitled at the request of the customer, insofar as their value exceeds the claims to be secured by more than 20%.

6. If the customer violates his contractual obligation or defaults on payment, we may withdraw from the contract if he fails to fulfill his obligations after a reasonable period of time has been set or if we cannot reasonably be expected to adhere to the contract even without a reminder. We may also declare our withdrawal by taking back the purchased item. After taking back the purchased item, we are entitled to sell it; the proceeds of the sale shall be offset against the customer’s liabilities, less reasonable costs of sale. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the customer acts in breach of contract.

§ 10 Warranty and notification of defects as well as recourse/manufacturer recourse

1. The customer’s warranty rights presuppose that they have properly fulfilled their obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).

2. Claims for defects shall become time-barred 12 months after the transfer of risk for the goods to the customer. The statutory limitation period shall apply to claims for damages in cases of intent and gross negligence as well as in cases of injury to life, limb, and health based on an intentional or negligent breach of duty by the user. Insofar as the law prescribes longer periods in accordance with § 438 (1) No. 2 BGB (buildings and items for buildings), § 445 b BGB (right of recourse) and § 634a (1) BGB (construction defects), these periods shall apply. Our consent must be obtained before any goods are returned.

3. If, despite all due care, the delivered goods have a defect that already existed at the time of transfer of risk, we shall, subject to timely notification of defects, either repair the goods or deliver replacement goods at our discretion. We must always be given the opportunity to remedy the defect within a reasonable period of time. Recourse claims remain unaffected by the above provision without restriction.

4. If the subsequent performance fails, the customer may—without prejudice to any claims for damages—withdraw from the contract or reduce the remuneration.

5. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear, or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground, or due to special external influences that are not assumed under the contract. If the customer or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences.

6. Claims by the customer for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded if the expenses increase because the goods delivered by us have subsequently been moved to a location other than the customer’s branch office, unless the transfer corresponds to their intended use.

7. The purchaser shall only have recourse claims against us to the extent that the purchaser has not made any agreements with its customer that go beyond the legally mandatory claims for defects. Furthermore, paragraph 6 shall apply mutatis mutandis to the scope of the purchaser’s recourse claim against the supplier.

8. We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Unless we are accused of intentional breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.

9. We shall be liable in accordance with the statutory provisions if we culpably breach an essential contractual obligation; in this case, however, liability for damages shall also be limited to the foreseeable, typically occurring damage. An essential contractual obligation exists if the breach of duty relates to an obligation on whose fulfillment the customer has relied and was entitled to rely.

10. Liability for culpable injury to life, limb, or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

11. Unless otherwise specified above, liability is excluded.

§ 11 Data processing permission

The seller is entitled to process all data relating to the buyer received in connection with the business relationship within the framework of the applicable legal provisions.

§ 12 Miscellaneous

1. This contract and all legal relationships between the parties are subject to the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

2. The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation (note: the use of this clause is not permitted if at least one of the parties is a company not entered in the commercial register).

3. These General Terms and Conditions of Sale shall remain valid even if individual clauses prove to be invalid. The invalid clause shall be supplemented or reinterpreted by the parties in such a way that the economic purpose intended by the invalid provision is achieved as far as possible. The same shall apply if a gap requiring supplementation arises during the execution of the contractual relationship. If the invalidity is based on a performance or time provision, it shall be replaced by the legally permissible measure. If a provision of these General Terms and Conditions of Sale is invalid in view of mandatory foreign law, the customer shall, upon request, agree with us on additions to the contract and make declarations to third parties or authorities which ensure the validity of the provision concerned and, if this is not possible, its economic content even under foreign law.

4. The German version of the General Terms and Conditions of Sale is the authoritative version. It takes precedence over the English translation in the event of translations and is designed in accordance with German case law.