General Terms and Conditions of Delivery and Payment for contractors of benno von stein KG1. Applicability of the Terms and Conditions

  1. These Terms and Conditions shall apply to all of our deliveries, services, and offers regarding contractors (Section 14 paragraph 1 of the German civil code – ‘BGB’) as well as corporatebodies under public law and special funds under public law [öffentlich rechtliche Sondervermögen]. These General Terms and Conditions shall not apply to consumers in the sense of Section 13 ‘BGB’.
  2. Terms and conditions of customers shall not apply, even if we do not explicitly reject their application. Even if we refer to written correspondence of the customer that contains or refers to terms and conditions of the customer, we do not agree to the application of such terms and conditions.
  3. If similar contracts and transactions are concerned, these Terms and Conditions shall apply to such future contracts and transactions.

    2. Conclusion of Contract

  1. Our offers are non-binding. The order submitted by the customer shall represent a binding offer. We are entitled to accept such order within three weeks from its receipt by sending either an order confirmation or the ordered goods.
  2. Oral agreements shall only be valid if confirmed in writing.
  3. We reserve the right to occasionally modify the specifications of our products. We will only effect such modifications for good reasons, especially if we enhanced our products or due to changes in the relation to our suppliers or for equivalent reasons. Without explicit consent of the customer, we will not implement modifications that may disturb the contractual balance between the customer and us.

    3. Delivery Period, Transfer of Risk

  1. Delivery dates, announced by us, shall not be binding but only apply approximately unless we have explicitly agreed to a fixed delivery date.
  2. Adherence to our delivery obligations is dependent on the timely and duly performance of the contractual obligations of the customer.

    Regarding customers having their business seat outside Germany, we request prepayment, unless explicitly agreed otherwise.

  3. Deliveries shall be carried out at the risk of the customer from our warehouse to the delivery address provided by the customer. This also apply accordingly in case the delivery is made from a different location than our warehouse. We shall not be obligated to make deliveries abroad; if no domestic delivery address is provided, then we shall be entitled to prepare the goods ordered for collection.
  4. We are entitled to partial delivery, if the following prerequisites are met:

    – the customer can use the partial delivery according to the contractually intended use,
    – delivery of the outstanding quantities is ensured,
    – no substantial additional work, expenses and costs accrue on the part of the customer (unless we agree to cover such expenses and costs).

  5. If we cannot adhere to fixed delivery dates due to reasons that are out of our control and responsibility (non-availability of our contractual performance), we shall inform the customer immediately thereof and at the same time shall submit the prospective new delivery date. If the performance of our contractual duty is not available until this new delivery date, we shall be entitled to fully or partly withdraw from the contract. In such case any contractual performance by the customer that has been made in consideration of our non-fulfilled contractual duty, shall be returned to the customer. A case of non-availability of our services in this sense shall be non-delivery to us by our suppliers if we have placed a congruent order and neither us nor the supplier is responsible for the lack of availability or if we are not obliged to procurement in a respective case.
  6. Subject to this Terms and Conditions default in delivery shall be governed by the statutory provisions. In any event a reminder of the client shall be necessary.

    4. Prices, Conditions of Payment

  1. Our invoices must be paid in full within 14 days of the invoice date, provided our order confirmation does not specify otherwise.
  2. The customer shall only have offsetting rights if his counter-claims are recognised by us, undisputed, or established by final judgement. Furthermore, the customer shall be only entitled to exercise a right of retention, provided the customer’s counter-claim is based on the same contractual relationship.
  3. Our prices are considered net, i.e. excluding statutory VAT, freight and packaging, and shall apply from our warehouse or from another loading point specified by us.
  4. We reserve the right to increase our prices accordingly if costs increase after conclusion of the Agreement, especially in case labour agreements or material prices cause increases, and if over four months have passed since conclusion of the Agreement and the agreed delivery. Upon request, we shall provide evidence of the price increases to the customer.

    5. Right of Withdrawal

1. In the event of payment suspension, bill protests, or impaired creditworthiness and trustworthiness or other events which endanger or may endanger the regular completion of the transaction, then we shall be entitled to free ourselves from our obligation to perform and may withdraw from the Agreement, provided that the customer, despite being requested, is not prepared to provide a security or service on the principle of performance upon counter- performance [Zug um Zug].

6. Advertising

  1. All images in our advertising (catalogue, Internet, flyers etc.) represent the depicted goods at the time of printing and initial publication of the adverts; we reserve the right to make changes later.
  2. Furthermore, the images contained in our adverts may represent special models of individual products that are not included in the base price of the standard model.

    7. Notices of Defects

1. The customer may only submit claims for defects if the customer has correctly adhered to his obligation to inspect and submit notice of defects under § 377 of the German Commercial Code (Handelsgesetzbuch).

2. The customer has only adhered to his obligation to submit notice of defects if he has given such notice latest within five days after delivery of the respective goods.

3. In case of hidden defects subsection 2. shall apply accordingly provided that the deadline starts to run at the date the defect has been discovered.

8. Claims for Material Defects

1. Subject to these Terms and Conditions or unless otherwise agreed, the rights of our clients resulting from material defects and defects in title shall be governed by the applicable statutory provisions.

2. If a delivered good is defective, we shall be entitled to decide if we cure the respective defect by repair or by subsequent delivery of new goods that are free of such defects.

3. Warranty claims shall be time-barred within twelve months from transfer of risk. This shall not apply if a longer period is prescribed by statutory law according to § 479 section 1 German Civil Code (Bürgerliches Gesetzbuch). Claims for damages are covered section 9.

10. Damages

1. We shall only be liable for damages for which we are responsible, regardless of legal basis, if the damage

a) was caused as the result of a culpable breach of a major contractual duty or in a manner endangering the fulfilment of the contractual purpose, or

b) is based on gross negligence or intent.

2. If we are found liable according to clause 1 a) above for the violation of a major contractual duty, without this being a case of gross negligence or intent, then our liability shall be restricted to the extent of the damages that we would typically have taken into account upon conclusion of the Agreement based on the circumstances known to us at that point.

3. The liability restrictions under clauses 1-2 above shall apply analogously to the benefit of our employees and representatives.

4. We shall be liable without restriction for damages resulting from injury to life, limb, or health based on a negligent breach of duty by us or an intentional or negligent breach of duty by one of our legal representatives or vicarious agents.

5. Our liability under Sections 1 and 4 of the German product liability act (‘ProdHaftG’) remainsunaffected. The same applies in case of fraudulent concealment on our part and if we have assumed a guarantee for the condition of the goods.

10. Retention of Title

1. We retain ownership of the delivery item until receipt of all due payments resulting from the business relationship with the customer.

2. In the event of attachments or other third-party intervention, the customer must immediately inform us accordingly in writing so that we may initiate third-party counter-claim proceedingsaccording to Section 771 of the German code of civil procedure (‘ZPO’). In case the thirdparty is unable to reimburse us for judicial and extrajudicial costs resulting from a lawsuitaccording to Section 771 ‘ZPO’, then the customer shall be liable for our losses.

3. Upon conclusion of the Agreement, the customer hereby assigns all claims to us, in the amount of the final invoice amount (including VAT), that the customer is entitled to against its customers or third parties resulting from a resale. This is regardless of whether the resale was permitted in each respective case. Even after assignment, the customer remains entitled to collect this claim. Our right to collect the claim ourselves remains unaffected. However, we shall undertake not to collect the claim, provided that the customer meets his payment obligations resulting from the collected proceeds, is not in default in payment and, in particular, is not bankrupt and has not filed an application to initiate insolvency proceedings. If this is the case, however, we may demand that the customer disclose to us the assigned claims and the debtors thereof, provide all information necessary for collection, submit related documentation to us and inform the debtors (third parties) of the assignment.

4. Processing or reshaping the delivered goods by the customer must always be performed for us. If the goods are processed with other objects not belonging to us, then we shall acquire joint ownership of the new item at a ratio of the value of the object of the sale to the other processed objects at the time of processing. Besides, the same shall apply to the object created through processing as to goods delivered primarily under retention of title.

5. We shall undertake to release the securities we are entitled to at the request of the customer, provided the value of our securities exceeds the claims to be secured by over 10%; we reserve the right to choose the securities to be released.

11. Materials and Usage Rights

1. Subject to the provisions of these Terms and Conditions we retain ownership and copyrights regarding any and all documents, catalogues, pricelists etc. that we submit to the customer. Such documents shall not be disclosed to third parties, unless we have consented on beforehand and in writing.

2. We grant to our customer a simple, non-exclusive license to use submitted materials. Such license may not be transferred and the right to sublicense is excluded. The right to use the submitted materials (e.g. product pictures, brochures, data, descriptions of products and other materials for advertisement purposes – hereafter materials) is restricted to advertisement for such of our products that the customer has ordered from us. The license shall terminate if the customer does not further obtain products from us and/or has no remaining respective products obtained from us in stock. The materials may not be edited or otherwise changed. In particular the customer is not entitled to remove copyright notices. The granted license to use does not cover advertisement on websites of third parties. In particular the customer is not entitled to publish respective materials on websites of third parties such as online shopping-portals (e.g. Amazon, ebay). In case the customer uses materials without being entitled to do so, we reserve the right to start legal actions.

12. Applicable Law, Place of Jurisdiction

1. The laws of the Federal Republic of Germany shall apply exclusively to the contractual relationship with our customer. The UN Convention on Contracts for the International Sale of Goods (CISG) is excluded. Insofar as mandatory regulations of other legal systems cannot be waived in this Agreement under the international conflict of laws applicable in Germany, these shall remain unaffected.

2. The place of jurisdiction shall be our registered office; however, we shall be entitled to file lawsuits against the customer at the premises of the customer.