General Terms and Conditions of Sale and Delivery of AB-Tec GmbH & Co. KG

§ 1 General Provisions, Scope of Application

(1) The following General Terms and Conditions of Sale and Delivery (AVLB) apply to all business relationships between AB-Tec GmbH & Co. KG, headquartered in Iserlohn (hereinafter also referred to as “AB-Tec”), and our customers, provided that the customers are business entities (Section 14 of the German Civil Code (BGB), insofar as they are acting within the scope of their business activities) or legal entities under public law.

(2) The AVLB, in their current version, shall also serve as a framework agreement for future contracts regarding the sale and/or delivery of movable goods to the same customer, without the need for their applicability to be expressly agreed upon again.

(3) AB-Tec’s General Terms and Conditions of Sale and Delivery apply exclusively. Any conflicting general terms and conditions of the customer shall not be recognized unless we have expressly agreed to them; in particular, delivery without reservation while being aware of the customer’s general terms and conditions does not constitute express consent in the aforementioned sense.

§ 2 Offers, Power of Attorney

(1) Our offers, including any product descriptions and other documentation, are subject to change and non-binding unless otherwise expressly agreed. Orders are either expressly confirmed by AB-Tec within a maximum of three business days of receipt or confirmed by delivery of the goods to the customer.

(2) The documents accompanying the offer, such as illustrations, drawings, and weight and dimension specifications, are only approximate unless AB-Tec expressly designates them as binding.

(3) Only AB-Tec’s managing directors, authorized signatories, and authorized representatives are authorized and empowered to enter into agreements on behalf of AB-Tec.

§ 3 Prices and Terms of Payment

(1) The prices listed are FCA (Incoterms 2020); the customer is also responsible for the costs of packaging and its disposal. The customer is responsible for all taxes, customs duties, fees, etc., incurred in connection with deliveries outside Germany.

§ 4 Payments / Late Payments

(1) Unless otherwise expressly agreed, the purchase price is due within 30 days of the invoice date and delivery, without any discount, and must be paid free of charge into AB-Tec’s bank account.

(2) Upon expiration of the above payment deadline, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. AB-Tec reserves the right to claim further damages resulting from the default.

(3) The customer is entitled to set-off or retention rights only to the extent that the customer’s claim has been legally established, is undisputed, or arises from the same contractual relationship. In the event of defects in the delivery, Section 7(3) remains unaffected.

(4) If, after the conclusion of the contract, it becomes apparent that AB-Tec’s claim to the purchase price is at risk due to the customer’s inability to pay (e.g., due to a petition for the opening of insolvency proceedings), AB-Tec is entitled to refuse performance in accordance with statutory provisions and, if necessary, to withdraw from the contract after setting a deadline (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of non-fungible goods (custom-made items), AB-Tec may declare its withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.

§ 5 Terms of Delivery, Acceptance, Transfer of Risk

(1) Deliveries are made on an FCA basis (Incoterms 2020) on the agreed date. AB-Tec is entitled to make partial deliveries if this is reasonable for the customer.

(2) Delivery dates are binding only if this has been expressly agreed. Whether AB-Tec is in default of delivery is determined in accordance with the applicable legal provisions.

(3) If the customer is in default of acceptance, fails to cooperate, or if the AB-Tec delivery is delayed for other reasons attributable to the customer, AB-Tec is entitled to demand compensation for the resulting damages, including additional expenses (e.g., storage costs). For this purpose, AB-Tec shall charge a flat-rate compensation of 0.5% of the net price (delivery value) of the goods to be delivered for each completed calendar week, starting from the delivery deadline or, in the absence of a delivery deadline, from the notification that the goods are ready for shipment; however, the total shall not exceed 5% of the delivery value. AB-Tec’s right to prove greater damages and its statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump-sum amount shall be offset against any further monetary claims. The customer is entitled to prove that AB-Tec incurred no damages at all or only damages less than the aforementioned lump-sum amount.

(4) If AB-Tec is unable to meet binding delivery deadlines for reasons beyond its control (unavailability of the service), AB-Tec shall notify the customer immediately and, at the same time, provide the expected new delivery deadline. If the service remains unavailable even within the new delivery period, AB-Tec is entitled to withdraw from the contract in whole or in part; AB-Tec will promptly refund any consideration already paid by the customer. AB-Tec’s statutory rights of withdrawal and termination, as well as the statutory provisions regarding the settlement of the contract in the event of an exclusion of the obligation to perform (e.g., impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected. The customer’s rights of withdrawal and termination pursuant to § 7 of these General Terms and Conditions of Sale also remain unaffected.

§ 6 Suitability and Quality, Compliance with Regulations, Intellectual Property Rights, Third-Party Rights

(1) Any statements or information provided by AB-Tec regarding the nature, suitability, and applicability of the goods do not relieve the customer of the obligation to conduct its own tests and trials.

(2) The customer is solely responsible for complying with any legal, regulatory, or other requirements when using the goods purchased from AB-Tec within the intended area of use.

(3) AB-Tec does not warrant that the products delivered outside Germany do not infringe upon the intellectual property rights of third parties, in particular. The customer is responsible for verifying this in each case. For deliveries within Germany, AB-Tec warrants that it is not aware of any third-party rights that would preclude the use of the items.

(4) If AB-Tec uses the customer’s samples, drawings, or other specifications in the manufacture of products on the customer’s behalf, the customer warrants to AB-Tec that such use does not infringe upon any third-party rights. The customer shall indemnify AB-Tec against all claims by third parties arising from any infringement of rights that may result from the use of such samples, drawings, or other specifications.

§ 7 Warranty, Material Defects

(1) The delivered goods must be carefully inspected immediately upon delivery. They are deemed to have been accepted if the customer fails to notify AB-Tec of any obvious defects or other defects that would have been apparent upon an immediate and careful inspection within two weeks of delivery of the goods or, otherwise, within two weeks of discovering the defect, or at any earlier point in time when the defect was recognizable to the customer during normal use of the goods without further inspection, has not notified AB-Tec in writing. Timely dispatch of the notice is sufficient to meet the deadline. At AB-Tec’s request, the goods subject to complaint must be returned to AB-Tec with shipping costs prepaid. In the event of a justified complaint, AB-Tec will reimburse the costs of the most economical shipping method; this does not apply if the costs increase because the goods are located at a place other than the place of intended use.

(2) In the event of defects in the delivered goods, AB-Tec is obligated and entitled, at its discretion to be exercised within a reasonable period of time, to first repair the goods or provide a replacement. In the event of failure, i.e., the impossibility, unreasonableness, refusal, or unreasonable delay of the repair or replacement, the customer may withdraw from the contract or reduce the purchase price appropriately and, if applicable, claim damages (see paragraph 7). However, there is no right of withdrawal in the case of a minor defect.

(3) AB-Tec is entitled to make the required remedy contingent upon the customer’s payment of the purchase price due. However, the customer is entitled to withhold a portion of the purchase price that is proportionate to the defect.

(4) In the event of defects in components, raw materials, or materials from other manufacturers that AB-Tec cannot remedy for licensing or practical reasons, AB-Tec shall, at its discretion, either assert its warranty claims against the manufacturers and suppliers at the customer’s expense or assign such claims to the customer. Warranty claims against AB-Tec for such defects shall exist under the other conditions and in accordance with these General Terms and Conditions of Sale only if the judicial enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or, for example due to insolvency, is futile. During the duration of the legal dispute, the statute of limitations on the customer’s relevant warranty claims against AB-Tec is suspended.

(5) The warranty shall be void if the customer modifies the delivered item or has it modified by a third party without AB-Tec’s consent, and this renders the rectification of defects impossible or unreasonably difficult. In any case, the customer shall bear any additional costs incurred in rectifying the defects as a result of the modification.

(6) The customer’s claims for damages or reimbursement of wasted expenses shall be governed solely by § 8 of these General Terms and Conditions and are otherwise excluded.

§ 8 Other Liability

(1) Unless otherwise provided in these General Terms and Conditions, including the provisions below, AB-Tec shall be liable for any breach of contractual or non-contractual obligations in accordance with the applicable statutory provisions.

(2) Any claims for damages by the customer, regardless of the legal basis, are excluded. This does not apply in cases of fraudulent concealment of a defect, breach of a quality guarantee, injury to life, limb, or health, and/or intentional or grossly negligent breach of duty by us, or in the event of a breach of duties whose fulfillment is essential for the proper performance of the contract and on whose compliance the customer may regularly rely (so-called essential contractual obligations / cardinal obligations). Claims under the Product Liability Act are also not affected by this limitation of liability.

(3) Claims for damages arising from a breach of material contractual obligations are limited to foreseeable damages typical for this type of contract, unless there is intent or gross negligence, or AB-Tec is liable for injury to life, limb, or health.

(4) The foregoing exclusions and limitations of liability apply to the same extent to the officers, legal representatives, employees, and other agents of AB-Tec. The foregoing provisions do not entail any shift in the burden of proof to the detriment of the customer.

§ 9 Retention of Title

(1) AB-Tec retains title to the goods sold (hereinafter referred to as “goods subject to retention of title”) until all current, future, and contingent claims of AB-Tec arising from the purchase agreement and an ongoing business relationship (secured claims) have been paid in full.

(2) The goods subject to retention of title may not be pledged to third parties or transferred as security until the secured claims have been paid in full. The customer must notify AB-Tec immediately in writing if and to the extent that third parties attempt to seize the goods subject to retention of title.

(3) If the customer breaches the contract, particularly by failing to pay the purchase price when due, AB-Tec is entitled to rescind the contract in accordance with applicable law and to demand the return of the goods subject to retention of title on the basis of that retention of title.

(4) The customer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

(a) Any processing or treatment of the goods subject to retention of title shall be carried out on behalf of AB-Tec as the manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without imposing any obligations on AB-Tec. The processed goods shall be deemed goods subject to retention of title within the meaning of Section 9 (1). In the event of processing, combination, or mixing of the goods subject to retention of title with other goods by the customer, AB-Tec shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If AB-Tec’s ownership expires due to combination or mixing, the customer hereby transfers to AB-Tec the ownership rights to which it is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safekeeping for AB-Tec free of charge. The co-ownership rights arising hereunder shall be deemed to be goods subject to retention of title within the meaning of § 9 (1).

(b) The Customer hereby assigns to AB-Tec, as security, all claims against third parties arising from the resale of the goods subject to retention of title, either in full or in an amount equal to AB-Tec’s share of co-ownership pursuant to paragraph (a) above. AB-Tec accepts the assignment. The customer’s obligations set forth in § 9(2) shall also apply with respect to the assigned claims.

(c) The customer remains authorized to collect the claim alongside AB-Tec. AB-Tec undertakes not to collect the claim as long as the customer meets its payment obligations to AB-Tec, is not in default of payment, no petition has been filed to open insolvency proceedings against the customer’s assets, and there is no other impairment of the customer’s ability to perform. If, however, any of these conditions are met, AB-Tec may demand that the customer disclose to AB-Tec the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment.

(d) If the realizable value of the collateral exceeds AB-Tec’s claims by more than 10%, AB-Tec shall, at the customer’s request, release collateral of AB-Tec’s choosing.

§ 10 Statute of Limitations

(1) Notwithstanding § 438(1)(3) of the German Civil Code (BGB), the general statute of limitations for claims arising from material defects and defects of title is one year from delivery.

(2) However, if the goods are items that have been used in a building in accordance with their customary use and have caused defects in the building (building materials), the statute of limitations is five years from delivery pursuant to statutory provisions (§ 438 (1) No. 2 BGB). This does not affect special statutory provisions regarding third-party claims for restitution in rem (§ 438 (1) No. 1 BGB), in cases of fraudulent intent on the part of AB-Tec (§ 438 (3) BGB), and regarding claims for supplier recourse in the case of final delivery to a consumer (§ 479 BGB).

(3) The above-mentioned limitation periods under sales law also apply to the customer’s contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the standard statutory limitation period (Sections 195, 199 of the German Civil Code (BGB)) would result in a shorter limitation period in a specific case. The limitation periods under the Product Liability Act remain unaffected in any case. Otherwise, only the statutory limitation periods apply to the buyer’s claims for damages pursuant to § 7.

Section 11 Data Protection

(1) The customer is hereby informed and consents to the processing and storage of data by electronic means in connection with order processing and billing. The quotation, order confirmation, delivery note, and invoice shall simultaneously serve as notification for the purposes of data protection law.

§ 12 Jurisdiction, Governing Law, Language

(1) If the customer is a merchant within the meaning of the German Commercial Code (HGB) or a legal entity under public law, the exclusive venue for all disputes arising directly or indirectly from the contractual relationship shall be the location of AB-Tec’s branch office in Iserlohn. However, AB-Tec is also entitled to bring an action in the customer’s general place of jurisdiction.

(2) These General Terms and Conditions of Business, as well as all legal relationships between AB-Tec and the customer, shall be governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.

(3) These General Terms and Conditions are available in a bilingual version (German and English). In the event of any ambiguities, questions of interpretation, contradictions, or omissions, the German version shall be the sole authoritative version.