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GENERAL TERMS AND CONDITIONS of company EFAFLEX Tor- und Sicherheitssysteme GmbH & Co. KG

Version dated: August 2010

 

I. Conclusion of the contract, subject matter of the contract:

1. These general terms and conditions of sale and delivery (“terms and conditions”) shall apply to all quotations, deliveries and services of EFAFLEX Tor- und Sicherheitssysteme GmbH & Co. KG, Fliederstraße 14, 84079 Bruckberg (“EFAFLEX”). They shall also apply to all future quotations, deliveries and services of EFAFLEX, unless transactions are concerned which are not of a similar type in comparison with the present transaction. Our terms and conditions shall be deemed as accepted at the latest upon accepting our delivery or service. Deviating individual agreements prior to and upon placement of an order shall have no effect unless they have been confirmed in writing by EFAFLEX. This shall in particular also apply to the amendment of this written form clause, which requires the written form. Deviating general terms and conditions of the contracting party of EFAFLEX are herewith objected to; they shall not apply even if EFAFLEX does not explicitly object to them again.

2. Contracts shall come into existence after the placement of an order only if they are confirmed in writing by EFAFLEX. The customer shall be bound to its order for two weeks. Quotations of EFAFLEX shall have a maximum validity of 30 days from the receipt of the quotation by the customer. Supplementary and collateral agreements must be made in writing. Any request for modification shall be deemed as rejected unless EFAFLEX accepts it explicitly and in written form.

3. Technical properties and designs which deviate from descriptions and details given in brochures, quotations and written documents as well as changes of service, construction and material within the scope of technical progress shall remain reserved without the customer being able to derive any rights from this.

Any documents on which the quotation, the order or the order acceptance is based, for example figures, drawings, dimensions, weights and other technical specifications, shall only become binding if and to the extent that they are confirmed in writing by EFAFLEX. Any typing errors or miscalculations caused due to slight negligence shall not oblige EFAFLEX in any way whatsoever, in particular, they shall not oblige EFAFLEX to pay damages.

4. EFAFLEX reserves any property rights and copyrights in figures, sketches, drawings, cost estimates and other documents. They must not be made accessible to third parties without approval and are to be immediately returned to EFAFLEX upon request.

 

II. Passing of the risk, shipping costs, delivery:

1. Unless expressly otherwise agreed, the delivery ex works and/or ex stock shall be agreed between EFAFLEX and the contracting party. The risk shall pass to the customer as soon as the goods are taken over by a forwarding agent or freight carrier in the stock/works of EFAFLEX, the goods made available are not called by the customer or the delivery is postponed at customer’s request. If EFAFLEX itself carries out the delivery with its own vehicles, the risk shall pass to the customer at the beginning of loading of the goods in the works or stock of EFAFLEX.

2. Transport insurance shall be taken out only upon the customer’s express request and at the customer’s expense.

3. Dates for provision of service shall only be considered as approximate dates unless expressly agreed as being “binding” in writing. The customer may set a deadline for EFAFLEX for the provision of the service of at least two weeks, which may start only after the approximate date. EFAFLEX shall not be in default prior to the expiry of this deadline.

All dates of provision of the service shall be subject to the proper and timely supply to EFAFLEX itself and shall for the rest only start after clarification of all specifications, however at the earliest on the day of the order confirmation by EFAFLEX and after receipt of possible agreed advance payments. They shall be extended by the period of the hindrance plus a reasonable time for recovery in case of force majeure, for example a strike, lock-out, subsequent shortage of material or energy, import and export restrictions or similar unforeseeable events which subsequently aggravate or render the delivery impossible for EFAFLEX or its suppliers. In these cases, EFAFLEX may rescind the contract completely or in parts with regard to the part not yet performed without incurring a liability to pay damages by doing so.

If the hindrance or delay lasts for more than three months, the customer shall be entitled to rescind the contract with regard to the part not yet performed after setting a reasonable period of grace. Prior to expiry of three months, a right of rescission shall only exist if the customer no longer has an interest in the delivery due to the delay and this is pointed out to EFAFLEX by the customer in good time.

4. If the customer is in default or if cooperation is delayed by the customer, the periods of delivery shall be extended by the same period plus a reasonable time for recovery.

5. EFAFLEX shall be entitled to partial performance acceptable for the customer.

6. If the dispatch is delayed upon request of the customer, the costs caused by storage shall be calculated as of the receipt of the notice of readiness for dispatch by the customer. EFAFLEX shall also be entitled otherwise to dispose of the goods after setting a reasonable deadline and to supply the purchaser within a reasonably extended period of delivery.

 

III. Prices, payments:

1. All prices stated are net exclusive of VAT in the respective statutory amount as well as packaging, freight and insurance. The deduction of a cash discount requires a special written agreement.

2. If the service of EFAFLEX in accordance with the agreement is to be performed at a point in time later than four (4) months after conclusion of the contract, EFAFLEX shall be entitled to adjust the price correspondingly if the applicable prices of suppliers of EFAFLEX, the relevant currency parities for the contract or possible customs and import duties are increased between the conclusion of the contract and the delivery.

If the delivery takes place later than four (4) months after conclusion of the contract, the price of EFAFLEX which is valid on the day of delivery shall apply. If this results in a price increase of more than one percent per commenced month to the detriment of the customer, the customer shall be entitled to rescind the contract. The rescission shall become invalid if EFAFLEX offers the delivery and/or the service to the customer at a price being within the range stated above within three days after receipt of the written declaration of rescission.

3. The packaging is calculated at cost price.

4. Possible rebates, discounts and special conditions shall cease to apply with retrospective effect if the order volume agreed is reduced at the instigation of the customer after the conclusion of the contract.

5. If no order-related terms of payment are agreed upon, the deliveries and/or services of EFAFLEX shall be due for payment at the latest within 30 days net as of receipt of the invoice or an equal request for payment without deduction. Cheques shall only be accepted on account of performance. If no payment is effected by the customer, the customer shall be in default after expiry of 30 days after receipt of the invoice without a separate warning by EFAFLEX being required. This shall not apply if the customer is not at fault for its delayed payment and/or non-payment. What is of importance for the timeliness of the payment is the time when EFAFLEX can dispose of the amount without any reservation.

6. In case of default of payment, EFAFLEX shall charge the statutory default interest. The assertion of further damage shall remain reserved.

7. Provisions for offsetting of the customer which conflict with § 366 para. 2 and/or § 367 para. 1 BGB [German Civil Code] shall be ineffective.

8. In the case of default of payment, failure to honour a cheque or bill of exchange, in the case of insolvency petition, cessation of payments or if EFAFLEX learns of facts which reveal a significant deterioration of the financial circumstances of the customer, EFAFLEX may deliver at its choice only against cash on delivery or only against cash in advance and demand immediate payment of all receivables under the business relationship which are not yet due for payment, even if cheques or bills of exchange were accepted for such receivables.

9. The customer shall only be entitled to offset or retention in the case of receivables which are undisputed or have become res judicata.

10. Deliveries abroad are made exclusively against cash in advance or irrevocable, confirmed, transferable documentary letter of credit which is to be issued by a bank of EFAFLEX in favour of EFAFLEX and divisible several times.

 

IV. Reservation of title:

1. EFAFLEX reserves the title to the goods until receipt of all payments from the business relationship with the customer. This shall apply accordingly if individual or all receivables have been included in a current account and the balance is deemed as accepted. If, by way of exception, liabilities of EFAFLEX on bills of exchange or cheques are constituted in the so-called cheque procedure, the reservation of title shall not expire prior to the honouring of the bills of exchange accepted by the customer.

2. The customer shall be entitled to resell the goods in the regular course of business against cash or subject to a reservation of title. The customer already now assigns all receivables to EFAFLEX which are due to the customer now or in future from its customers or third parties under the resale with security and ancillary rights amounting to the final invoice amount (incl. VAT). This shall apply regardless of whether the object of the purchase has been resold without or after processing. If a current account relationship is agreed upon, the receivables assigned in advance also shall relate to the accepted balance and, in the case of insolvency of the customer, also to the then existing “causal” balance. The customer shall be entitled to collect receivables in its own name pursuant to clause 6. The authority of EFAFLEX to collect the receivables itself shall remain unaffected. EFAFLEX undertakes not to collect the receivable as long as the customer meets its payment obligations from the collected amounts, is not in default with its payments and in particular if no petition for the opening of composition or insolvency proceedings has been filed and if the payment has not been stopped. However, if this is the case, EFAFLEX may request that the customer notifies EFAFLEX of the receivables assigned and their debtors, provides any and all information required for the collection, hands over the related documents and informs the debtors (third parties) of the assignment. The customer has to keep the proceeds from any resale of reserved goods of EFAFLEX apportionable to EFAFLEX separately and pay them to EFAFLEX in each case immediately after receipt to the extent that the receivables of EFAFLEX are and/or become due.

3. The goods of EFAFLEX are to be expressly excluded from transfer by way of security of entire warehouses. In the case of attachments or other encroachments of third parties, the customer has to inform EFAFLEX immediately so that EFAFLEX can bring an action pursuant to § 771 ZPO [Code of Civil Procedure]. To the extent that the third party is not able to reimburse the judicial and extra-judicial costs of an action pursuant to § 771 ZPO to EFAFLEX, the customer shall be liable for the loss incurred by EFAFLEX.

4. Processing or transformation of the goods by the customer shall take place under exclusion of the acquisition of ownership pursuant to § 950 BGB and shall be made for EFAFLEX at all times. If the object is processed together with other items not belonging to EFAFLEX, EFAFLEX shall acquire the co-ownership of the new object in the proportion of the value of the purchase object (final invoice amount, incl. VAT) to the other items processed at the time of processing. In all other respects, the provision applicable to the object of the purchase supplied subject to the reservation shall equally apply to the object created by the processing.

5. The customer shall be entitled to assign the receivable arising due to resale the reserved goods of EFAFLEX within the framework of a so-called “real” factoring with acceptance of the del credere risk by the factor if EFAFLEX is informed thereof and if the factoring proceeds exceed the value of the secured receivable of EFAFLEX. The receivable of EFAFLEX shall become due for payment at the latest upon the crediting of the factoring proceeds.

6. In the case of cessation of payment, insolvency petition of the customer or if the customer is in default of payment, the powers to resell the reserved goods and collect the customer’s receivables shall expire automatically.

7. If the customer does not effect immediate payment in cash upon request in case of behaviour contrary to the contract, in particular in case of default of payment, it shall have to return the goods of EFAFLEX without objection. EFAFLEX may take away the reserved goods belonging to EFAFLEX and for this purpose also enter the storage and business premises of the customer. The costs of taking back the products shall be borne by the customer. EFAFLEX shall be entitled to realise goods taken back by means of private sale in the best possible manner. To the extent that the proceeds exceed the secured receivables of EFAFLEX, they shall be due to the customer.

8. The customer must insure the goods at its own expense against damage due to fire, water and theft sufficiently at the replacement value. Any damage which occurs is to be notified to EFAFLEX immediately. All claims against the insurance companies are already now assigned by the customer to EFAFLEX, to the extent that they relate to reserved goods of EFAFLEX. If maintenance and inspection work is required, the customer must have such work carried out at its own expense in good time and in a professional manner.

9. EFAFLEX undertakes to release the securities to which EFAFLEX is entitled upon request of the customer insofar as the realisable value of the securities of EFAFLEX exceeds the receivables to be secured by more than 20 %. The choice of the securities to be released shall be incumbent on EFAFLEX.

 

V. Acceptance:

1. Any services to be performed by EFAFLEX shall be accepted by the customer within the scope of an acceptance test pursuant to the standard test programme of EFAFLEX.

2. If, after the completion of the service, EFAFLEX requests its acceptance, the customer shall have to carry out such acceptance within 12 working days. In the case of fruitless expiry of this period, the work shall be deemed as accepted.

3. If an admissible partial service is given, self-contained partial services shall have to be accepted separately upon request of EFAFLEX.

4. If no acceptance is requested, the service shall be deemed as accepted upon expiry of the 12th working day after the written notification of completion, however at the latest upon commissioning.

 

Vl. Warranty:

1. The warranty rights of the customer require that the customer has met its obligations to examine and notify defects properly.

2. The full burden of proof for all prerequisites of a possibly warranty claim shall be borne by the customer, in particular for the defect itself, for the time of determination of the defect and the timeliness of the notification of defects.

3. Claims under the warranty for defects shall not exist in the case of deviation from the agreed condition which is only insignificant or impairment of the usefulness which is only insignificant.

4. In the case of transactions with entrepreneurs, the warranty of EFAFLEX shall extend to a duration of 12 months as of passing of the risk. EFAFLEX shall warrant that the contractual items have the expressly agreed characteristics or, to the extent that no condition has been agreed upon, that they are suitable for the contractually required use, or that they are otherwise suitable for the usual use and have a condition which is usual in case of deliveries and services of this kind and which the customer may expect in case of deliveries and services of this kind.

5. Public statements, promotions or advertising of EFAFLEX shall not be taken into account when determining the condition to be usually expected within the meaning of the above clause.

6. If information regarding the opening and closing speeds are made, they shall depend on the installations by the customers and may deviate correspondingly.

7. EFAFLEX shall fulfil its warranty obligations at its own option in form of removal of defects or making a new work and/or new delivery. If the supplementary performance fails, the customer shall be entitled at its choice to the rescission of the contract or to reduction (lowering of the remuneration). The customer shall not be entitled to a right of rescission in the case of non-conformity with the contract which is only minor, in particular in the case of defects which are only minor.

8. The customer shall not be entitled to assert claims and rights due to defects if the customer has not effected due payments and the due amount is in a reasonable proportion to the value of the defective service.

9. A right of retention of the customer regarding the remuneration of EFAFLEX shall exist even in the case of justified complaints of goods only to the amount of the part of the remuneration attributable to the item complained about in detail.

 

VII. Limitation of liability:

1. The statutory liability of EFAFLEX for damages shall be limited as follows: EFAFLEX shall not be liable for the slightly negligent violation of immaterial duties under the contractual obligation. In the case of violation of material contractual duties, EFAFLEX shall be liable for any negligence but only up to the amount of the typically foreseeable damage.

2. Any liability for damages beyond the one provided for herein shall be excluded without consideration of the legal nature of the claim asserted. This shall apply in particular for claims due to culpa in contrahendo, due to other violations of duties or claims under tort due to damage to property pursuant to § 823 BGB.

3. Damage to work in progress including consequential damage currently is deemed to be insured at € 500,000. The contractor and EFAFLEX Tor- u. Sicherheitssysteme GmbH & Co. KG are agreed that this coverage amount is deemed to be contractually agreed as limit of liability.

4. To the extent that the liability of EFAFLEX is excluded or limited, this shall also apply to personnel, employees, agents and assistants of EFAFLEX.

5. The limitations and exclusions of liability shall not apply to claims which were caused by fraudulent behaviour of EFAFLEX as well as in the case of liability for guaranteed characteristics, for claims under the product liability law as well as damage due to injury to life, body or health. A change of the burden of proof to the detriment of EFAFLEX shall not be associated with the above-mentioned regulations. The customer shall be obliged to take appropriate measures to avert and reduce damage.

6. The compliance with possible installation and assembly regulations of all kinds (e.g. UVV [accident prevention regulation] or regulations of VDE [German association for electric, electronic and information technologies], VDI [association of German engineers], TÜV [technical inspection agency], amongst others, in particular orders under public law) shall exclusively be the responsibility of the customer.

 

VIII. Property rights:

1. EFAFLEX shall be liable towards the customer for the infringement of industrial property rights of third parties within the framework of the following regulations. The fulfilment of this obligation requires that the customer informs EFAFLEX without delay about claims asserted by third parties against the customer and that it acts in agreement with EFAFLEX when dealing with these claims and pursuing its rights. If any of these prerequisites is not met, EFAFLEX shall be released from its obligation. If an infringement of property rights of third parties results for which EFAFLEX is liable pursuant to these terms and conditions, and if therefore the customer is legally bindingly prohibited from using the delivery item completely or in parts, EFAFLEX shall either
a) procure the right to use the delivery item for the customer or
b) design the delivery item free from industrial property rights or
c) replace the delivery item by another item of adequate capacity which does not infringe property rights or
d) shall take back the delivery item against reimbursement of the remuneration.

2. If the customer carries out changes to the delivery items, the installation of additional devices or combines the delivery item with other devices or equipment and if due to this industrial property rights of third parties are infringed, the liability of EFAFLEX shall cease to apply.

3. Similarly, EFAFLEX shall not be liable for the infringement of external property rights for a delivery item which is made pursuant to drawings, developments or other information of the customer or for a non-foreseeable application. In this case, the customer has to indemnify EFAFLEX from claims of third parties.

4. The customer shall not be entitled to further or other claims due to the infringement of industrial property rights of third parties. In particular, EFAFLEX shall also not compensate for any consequential damage, such as loss of production and use and lost profit. These limitations of liability shall not apply to the extent that there is mandatory liability for foreseeable damage typical for the contract in cases of intention or gross negligence or the violation of material contractual duties or the lack of warranted characteristics. The right of the customer to rescind the contract remains unaffected.

5. The customer shall not acquire any claims to the usage of property rights available to EFAFLEX relating to the interaction of the delivery item with other items.

 

IX. Force majeure:

1. Force majeure and other non-foreseeable impediments to performance which cannot be overcome by reasonable expenses shall release EFAFLEX from the duties resulting from the contractual relationship with the customer to the extent of their effect if the impediments to performance are attributable to these circumstances. If these impediments to performance are permanent, both EFAFLEX as well as the customer may rescind the part of the contract not yet performed completely or in parts.

2. In all other respects, the customer may only rescind the contract within the framework of the statutory provisions if EFAFLEX is at fault for the violation of duty; in the case of defects, the statutory prerequisites shall remain maintained unless they have been effectively amended in these terms and conditions or by individual agreement. In the case of violations of duty, the customer has to declare within a reasonable period of time after request by EFAFLEX whether it shall rescind the contract due to the violations of duty or insists on performance.

 

X. Final provisions:

1. The assignment of receivables of the customer from EFAFLEX shall not be admitted.

2. All obvious commercial and/or goods-specific details of which the customer learns due to the business relationship with EFAFLEX are to be treated confidentially. In particular, quotations, calculations or other documents in connection with the goods delivered by EFAFLEX must not be made accessible to third parties. EFAFLEX reserves the title to these documents.

3. The laws of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between EFAFLEX and the customer. The provisions of the UN Sales Convention and the Hague Convention on the conclusion of sales contracts shall not apply to the legal relationship between the customer and EFAFLEX.

4. Landshut shall be the exclusive place of jurisdiction for all disputes resulting from the contractual relationship directly or indirectly.

5. If any of the provisions in these terms and conditions or any of the provisions within the framework of other agreements between EFAFLEX and the customer is or become ineffective, the effectiveness of all other provisions or agreements shall not be affected.

6. Data protection:
The customer herewith agrees that EFAFLEX shall collect data regarding the start, development and possibly the termination of the business relationship with the customer and forward such data to third parties commissioned with the data processing by EFAFLEX; this shall also apply to data due to possible non-contractual behaviour (e.g. payment order applied for in the case of uncontested receivables as well as compulsory execution measures). The customer is aware and agrees that the collection, processing or use of such data by EFAFLEX also conduces to assessing the creditworthiness of its customers and monitoring their financial standing by passing on such data to the commercial credit insurance company and/or credit inquiry agencies. The customer also agrees that EFAFLEX is entitled to use the data for its own advertising purposes in the form of mailings to the customer.