General conditions of sale and supply

I. General provisions

1. Written declarations given by both parties are authoritative for the scope of deliveries or services (hereinafter: ‘deliveries’). Such declarations are supplemented by these general conditions of sale and supply (hereinafter: ‘conditions of sale’). The ordering party’s countervailing conditions or conditions otherwise differing to our conditions of sale apply only if this application has been expressly agreed by us in writing. Our conditions of sale also apply in full even when we perform delivery to the ordering party without stating any reservations and despite knowledge of the ordering party’s countervailing or differing conditions. Our conditions of sale also apply in the version valid at the point in time of contract conclusion to all future legal transactions with the ordering party.

2. We reserve all rights of ownership and rights of exploitation under copyright law to all cost estimates, drawings, figures, costings and other documents (hereinafter: ‘documents’). These documents may be shared with third parties only following our prior consent and must be returned to us without delay in the event of the order not being placed. Clauses 1 and 2 apply mutatis mutandis to the ordering party’s documents. However, the ordering party’s documents may be shared with third parties to whom we have officially transferred responsibility for deliveries.

3. For software packages, the ordering party is granted a non-exclusive right of usage with the agreed performance characteristics in an unmodified format on the agreed devices. The ordering party may make two backup copies without requiring express permission to do so.

4. Partial deliveries are permissible if they do not place an unreasonable burden on the ordering party.

II. Contract conclusion

1. Quotations are always subject to alteration insofar as no separate agreements have been made to the contrary. The right to make reasonable changes for technical reasons, and in terms of format, colour and other conditions, is reserved, insofar as this does not affect fitness for purpose.

2. We can accept purchase orders that are to be considered as quotations in a legal sense within two weeks of receipt. This acceptance may be made in writing or by the delivery itself.

3. Contract conclusion is made subject to receiving timely and correct inbound deliveries from our suppliers, but not in cases where we bear no responsibility for non-delivery of these deliveries. This applies in particular if we have concluded a corresponding supply contract with our supplier.

In the event of the non-availability or non-timely availability of the delivery, we will inform the ordering party immediately; any consideration already rendered will be reimbursed without undue delay.

III. Prices and terms of payment

1. Prices are quoted ex works, exclusive of packing, unless other arrangements have been expressly made. Ancillary deliveries will be invoiced separately.

2. Our prices are quoted exclusive of statutory sales tax; this sales tax is quoted separately at the statutory rate.

3. Insofar as we have accepted responsibility for set-up or assembly and unless agreed otherwise, the ordering party bears all additional costs such as travel expenses, costs for transportation, costs for materials required for set-up or assembly, and personal luggage and accommodation allowances, in addition to the agreed compensation.

4. Discounts must be agreed separately in writing.

5. Payment must be made by the due date and at the ordering party’s expense; our receipt of payment is authoritative for deciding timeliness.

6. The ordering party may offset their own claims against our claims only if these counterclaims are recognised as legally binding, uncontested or have been accepted on our part. The ordering party may assert retention of title only in such cases where the ordering party’s counterclaim is based on a legal relationship governed by the same individual agreement; any retention of title based on claims resulting from an entitlement outside the context of the respective contract may not be asserted.

IV. Minimum order volume

The minimum order volume for deliveries within Germany is EUR 50.00 (net value of goods).

For deliveries to EU member states, the minimum order volume is EUR 100.00 (net value of goods).

For all other deliveries outside the EU, the minimum order volume is EUR 500.00 (net value of goods).

V. Retention of title

1. The delivery objects (retained goods) remain our property until the fulfilment of all claims against the ordering party to which we are entitled on legal and contractual terms from the entire business relationship. Insofar as the value of all security interests to which we are entitled exceed the sum of all secured claims by more than 20%, we will, at the ordering party’s request, release a corresponding portion of the security interests as we see fit.

2. While the right to retention of title persists, the ordering party may not pledge or transfer by way of security the delivery objects. Further, the ordering party may sell on only to resellers as part of normal business and only on conditions that the reseller receives payment from their customers or sets the condition that the property is transferred to the customer only once the latter has fulfilled all of their payment obligations. In the event of a resale, the ordering party hereby assigns us all receivables that they receive due to the resale from their buyer or third party up to the amount of the final invoice sum of our receivable. This applies whether or not the purchased item is resold with or without further processing. We remain entitled to collect the receivable ourselves; the right of the ordering party to perform collection remains even after assignment. We undertake not to collect the receivables while the ordering party complies with their payment commitments, does not enter into arrears and has made no application to open insolvency proceedings, and we have not received notice of a suspension of payments. In such cases, we are entitled to request information about the ordering party’s obligors in terms of the receivables assigned to us, and to request all particulars and documents required for collection.

3. In the event of asset seizure or confiscation or other third-party seizure orders or interventions, the ordering party shall inform us and the third parties without delay and is liable for compensation claimed due to delay.

4. If the ordering party is in culpable breach of fundamental contractual obligations, especially a default in payment, we are entitled to take back the delivery after issuing a warning; the ordering party shall then surrender the delivery. The performing of take-back or assertion of a right to retention of title or to pledge retained goods on our part does not constitute termination of the contract unless we have stated this expressly.

VI. Delivery times and delay

1. Our compliance with the times agreed for delivery is conditional on the timely receipt of all documents, required permits and approvals to be supplied by the ordering party, and especially plans or technical particulars, as well as compliance with the agreed payment terms and other obligations on the part of the ordering party. If these preconditions are not fulfilled in a timely manner, delivery times are extended correspondingly; this does not apply if we are responsible for the delay and the ordering party can prove this is the case.

2. If non-compliance with delivery times can be attributed to vis major – such as military mobilisation, war, terrorism, natural disasters, riot or similar events – such as strikes or lockouts – then the delivery times are extended correspondingly.

3. In the event of a delayed delivery, the ordering party, after providing evidence of having suffered a corresponding loss, may claim compensation for each full week of delay at 0.5%, and no more than 5% in total, of the price for the part of the delivery that could not be commissioned for its intended purpose as a result of the delay.

4. Any claims to compensation made by the ordering party that exceed the limits specified in clause 3 are excluded in all cases of delayed delivery, even following the expiry of a grace period set for delivery. This does not apply in the event of mandatory liability due to wilful intent or gross negligence, nor does this imply a change in the burden of proof to the detriment of the ordering party. This does not affect the ordering party’s right to unwind the contract following fruitless expiry of a grace period we have been set.

5. If shipping, delivery, assembly or set-up at the ordering party’s request is delayed by more than a month following notification of readiness for dispatch, the ordering party may be charged warehousing fees at 0.5%, but no more than 5% in total, of the price of the delivery objects for each full month or part thereof. This does not prevent the parties to the contract from providing evidence of higher or lower warehousing fees.

VII. Assumption of risk

1. The risk of accidental destruction and accidental deterioration passes to the ordering party on handover or, in the case of a sales shipment, on delivery to the haulier, freight forwarder or other persons or organisations entrusted with the execution of shipping. The ordering party may request insurance of deliveries against typical transportation risks and bears the associated costs.

2. For deliveries involving set-up or assembly at the ordering party, assumption of risk passes to the ordering party following acceptance at the latter’s premises and no later than completion of assembly or setup. If so agreed, assumption of risk takes place following a successful trial run.

3. If the ordering party has delayed acceptance, risk passes to the ordering party at the point in time the former is in default re acceptance. This applies in particular to default re acceptance in shipping, provisioning, commencing, performing setup or assembly, acceptance on premises or trial runs.

VIII. Set-up and assembly

The following conditions apply to set-up and assembly insofar as not otherwise agreed in writing:

1. The ordering party shall, at their own cost and in a timely manner:

a) complete all earthworks, construction work and other work to be performed by other trades, including supplying skilled and unskilled personnel, materials and tools;

b) provide all materials and equipment required for assembly and commissioning, such as scaffolding, lifting gear and other apparatus, fuel and lubricants.

c) supply energy and water at the point of use, including connections, as well as heating and lighting.

d) provide sufficiently large, suitable, dry and lockable rooms for storing the machine parts, apparatus, materials, tools, etc. and provide appropriate working and common room facilities for assembly personnel, including sanitary facilities appropriate for the relevant assembly activities; the ordering party shall take steps to protect our property and ensure assembly personnel safety on the construction site, such as the ordering party would arrange for their own company; and

e) supply protective clothing and safety devices as required by the specific circumstances of the assembly site.

2. Before starting assembly work, the ordering party shall provide unbidden particulars of the location of supply lines for electricity, gas, water and other systems – especially if concealed – as well as the associated structural safety information. If damage should occur, the ordering party is liable to us on the terms of our internal relationship and must provide evidence that they bear no culpability for this damage.

3. Before the set-up or assembly work commences, the items and objects necessary for starting work must be provisioned at the set-up or assembly site, and all of the work required prior to commencing set-up must have proceeded so far that the set-up or assembly work can be performed according to the contract and without any interruptions or delays. Access routes and the set-up or assembly site itself must be appropriate and prepared so that all assembly and set-up tasks can be performed as reasonably expected.

4. If delays in set-up, assembly or commissioning work occur due to circumstances beyond our control, then the ordering party shall bear a reasonable proportion of the costs for waiting times and any extra travel expenses as required without further conditions being required.

5. The ordering party shall sign records of assembly personnel working hours and the completion of set-up work, assembly or commissioning without undue delay.

6. Following completion, the ordering party shall perform acceptance of the delivery within 2 weeks. If the ordering party does not perform acceptance following completion, then acceptance is considered complete within two weeks of completion. Acceptance is also considered complete if the delivery is utilised – potentially following completion of an agreed test phase. The acceptance cannot be rejected on account of non-material defects.

IX. Liability for defects, warranty

1. Warranty claims asserted by the ordering party are dependent on the ordering party providing notification of obvious defects within 2 weeks of delivery and/or set-up or assembly. Insofar as the condition of the delivery can be determined by special inspections (such as analyses using electrical equipment), this notice of defects deadline is extended to allow the prompt commissioning of these special inspections by the time needed to perform them in the ordinary course of business and no longer than 20 business days. This does not affect duties of inspection and quality control as stated in section 377 of the German Commercial Code.

2. The ordering party shall permit us to inspect the delivery objects that the former considers to be defective.

3. In the event of a delivery object being defective, we have the right to choose between remediation of the defect and delivery of a non-defective good. Remediation work is performed at company headquarters and we bear the costs of return shipments. If remediation is impossible, the ordering party has the right to either reduce the level of compensation paid or to unwind the contract. The right to unwind the contract is not granted in the case of only minor contractual faults and particularly in the event of minor defects. If the ordering party unwinds the contract, this voids all further rights to claim compensation.

4. Claims of the ordering party due to defects lapse for new goods after one year. No warranty is offered following the delivery of used goods.

If the warranty is fulfilled by remediation of defects, the period of limitation for the remediation and for the installed parts lapses with the expiry of the period of limitation for the purchased object itself.

No warranty is offered for defects that have occurred due to normal wear and tear, improper handling, overstressing, modification of the products or similar effects or factors.

5. The ordering party bears the burden of proof for all circumstances on which claims are based. The ordering party also bears the burden of proof for the point in time the defect was discovered, for the presence of the defect at the time of delivery and for the defect not being an obvious defect.

6. The condition of the goods is based solely on the product description and the particulars given in the quotation or our order confirmation. Public statements made by us or by our suppliers, or in particular as made in advertising or labelling that relate to certain properties are not contractually valid statements about condition. If a defective assembly or user guide is supplied, the ordering party merely has the right to demand delivery of a non-defective assembly or user guide. No claim may be made if the defect in the assembly or user guide does not impede the intended assembly or use of the delivery.

7. Insofar as not otherwise expressly set out in a separate agreement, we offer no further guarantees by which we are legally bound.

X. Impossibility/contractual amendments

1. In the event of impossibility for which we are culpable, the ordering party is entitled to claim compensation. The ordering party’s claim to compensation is limited to 10% of the value of that part of the delivery that cannot be commissioned for its intended purpose as a result of this impossibility. This limit does not apply in the event of mandatory liability due to wilful intent or gross negligence, nor does this imply a change in the burden of proof to the detriment of the ordering party. This does not affect the ordering party’s right to unwind the contract.

2. If unforeseen events occur in the sense given by section V(2), such that significantly change the commercial relevance or contents of the delivery or which significantly impact our company, the contract will be amended appropriately by applying the principle of good faith. If this is not a reasonable action to take on commercial grounds, we have the right to unwind the contract. The legal transaction will then be unwound according to legal requirements without entitling the ordering party to claim for compensation. After recognising the severity of the event, we will notify the ordering party without delay that we wish to exercise our right to unwind the contract. The right to unwind the contract exists even if an initial extension period to the delivery time has been agreed with the ordering party.

XI. Industrial property rights and copyright

1. If a third party asserts legitimate claims against the ordering party due to an infringement of industrial property rights or copyright (hereinafter: ‘property rights’) by products supplied by us and used according to the contract, our liability to the ordering party is as follows:

a) We will, as we see fit, bear the costs of obtaining a usage right for that product or will modify the product so that the property right is not infringed or will alternatively exchange the product. If the conditions for doing so are not reasonable, we have the right to take the product back on reimbursement of the purchase price and deducting the expenses saved by the ordering party by usage to date or the benefits accrued by the same as a result of usage to date. Insofar as the contractual relationship or the nature of the delivery itself does not produce some other figure, the expense saved or benefit accrued is set as a fixed percentage of 3% of the purchase price per full month or part thereof of actual usage, with the maximum figure not exceeding the total price. The ordering party is free to provide evidence of a lower figure for expenses and benefits.

b) The obligation stated above applies only insofar as the ordering party notifies us in writing and without delay of the claims asserted by the third party, does not acknowledge an infringement of property rights, and our right conduct defence measures and settlement negotiations is in no way restricted. If the ordering party ceases use of the product in order to mitigate damages or for some other good cause, the ordering party shall notify the third party that this cessation of use does not constitute acknowledgment of a property right infringement.

2. All claims of the ordering party are excluded if the latter bears responsibility for the property right infringement.

3. Furthermore, all claims of the ordering party are excluded insofar as the property rights infringement is caused by special instructions from the ordering party or by a use we have not envisaged, or is caused by the ordering party changing the product or deploying the product with products we have not supplied. In the case of special instructions, the ordering party bears the risk of a property right infringement – we are not obliged to provide information or advice in this context. In the event of a property right infringement by use, the ordering party bears the burden of proof that this use was foreseeable on our part.

4. All further claims against us are excluded; this does not affect the other liability claims regulated in these conditions of sale, however, nor the right of the ordering party to unwind the contract.

XII. Disposal of waste electrical equipment

1. The ordering party shall dispose of the delivery objects when they are no longer required for use and shall comply with applicable waste disposal legislation when doing so. The ordering party bears the costs of disposal.

2. The ordering party releases ELABO from all obligations arising from section 10(2) of the German Electrical and Electronic Equipment Act, and in particular from manufacturer take-back obligations, and indemnifies ELABO against all related third-party claims.

3. If the ordering party passes the objects delivered on to a third party, the former shall ensure that the latter is contractually obliged to dispose of the objects after use according to applicable law, with the costs being borne by the ordering party or third party.

The ordering party shall ensure that the third party is contractually obliged to arrange the same contractual obligations in the event of the goods being passed on again.

4. If the ordering party breaches the terms of clause 3, the party shall take back the goods in accordance with clause 1, dispose of these according to applicable law, and indemnify ELABO against any and all third-party claims.

5. Claims on the part of ELABO from these provisions against the ordering party lapse no earlier than 2 years from the end of use, i.e. a suspension applies to the period of limitation. This does not commence before ELABO’s receipt of a written notice from the ordering party concerning the end of use.

6. Any other agreement for take-back and disposal of the used electrical items by ELABO must be declared by the ordering party in writing. The scope of take-back will be limited to parts that meet all of the following criteria: brand name ‘ELABO’ on the used item, CE marking, serial number label with serial number (must still be present on the used electrical item), icon showing a crossed-out waste container with a black bar positioned underneath this icon. The scope of take-back comprises used electrical items only without housing, bench add-on units, etc.

XIII. Other liabilities

Insofar as we are obliged to pay compensation or reimburse expenses on account of a contractual or legal basis, our liability is limited to wilful intent and gross negligence on the part of our company, our managerial staff or vicarious agents, or in the event of our being culpable of an injury to life, limb or health. This does not affect our strict liability on the terms of the German Product Liability Act. Nor does this affect our liability for the culpable breach of fundamental contractual obligations. In the latter case, however, excepting the cases in sentence 1 and 2, liability is limited to foreseeable losses typical for the contract. The above provisions do not imply a change in the burden of proof to the detriment of the ordering party.

XIV. Place of jurisdiction

The general place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Crailsheim.

All claims are subject to German law with the exclusion of any and all other international conventions.

XV. Severability clause

The validity of individual provisions of these conditions of sale and supply does not affect the validity of the other provisions. The invalid provision will be replaced by a provision whose commercial ramifications most nearly approximate those of the invalid provision.