General terms and conditions of business GENESIS GmbH

§1 General provisions, area of applicability, offer

(1) Our deliveries and services shall take place exclusively on the basis of the following terms and conditions. Deviating general terms and conditions of the customer are not recognised; they shall not form part of the contract. This shall also apply if we carry out the delivery to the customer without reservation in the knowledge of its terms and conditions of business. Other rules shall only apply if we expressly agree to this in writing. Our terms and conditions of business shall only apply if the customer is an entrepreneur (§ 14 of the German Civil Code - BGB), a legal person under public law or a special fund under public law.

(2) Our terms and conditions of business shall apply in particular to contracts for the sale and/or delivery of chattels (hereinafter also referred to as "goods"), without taking into account whether we manufacture these ourselves or obtain them from suppliers (§§ 433 and 651 of the German Civil Code - BGB). They shall also apply in their respective version as a framework agreement for future contracts of sale and/or the delivery of chattels with the same customer, without these terms and conditions of business needing to be referred to again in each individual case.

(3) Any individual agreements concluded with the customer in individual cases (including ancillary agreements, additions and amendments) shall always take precedence over these terms and conditions. A written contract and our written confirmation shall be decisive for the contents of such agreements.

 (4) Legally relevant declarations and notices which are to be made to us by the customer following conclusion of the contract (for example the setting of deadlines, defect notices, declaration of rescission or reduction) shall require written form to take effect.

 (5) References to the validity of statutory regulations shall only have an explanatory function. Therefore, the statutory regulations shall also apply without such a clarification, to the extent that they are not directly changed or are explicitly excluded in these terms and conditions.

 (6) Our offers shall be subject to confirmation and non-binding. This shall also apply if we have provided the customer with catalogues, technical documentation (for example drawings, plans, computations, calculations, references to DIN norms), other product descriptions or documents, also in electronic form, in respect of which we retain ownership and copyright.

 (7) In case of conclusion of a transaction in international trade, the Incoterms 2010 shall additionally apply for the interpretation of the trading clauses.

 

§2 Delivery deadline and delivery delays, reservation of self-delivery

 (1) The delivery deadline shall be individually agreed and offered by Genesis at the time of acceptance of the order.

 (2) Should binding delivery deadlines not be able to be complied with for reasons for which Genesis is not responsible, we shall immediately inform the customer of such and notify the new expected delivery time. Should the performance also not be available or should it be unreasonable during the new delivery time, we shall be entitled to rescind the contract. Any consideration already provided shall be immediately refunded to the customer. A right of rescission which is available to the customer or subsequently to us, shall, as a rule, only refer to the part of the contract which has not yet been performed. However, should partial deliveries which have been made be unusable for the customer, the customer shall be entitled to rescind the entire contract. The rights of rescission and termination of the customer in accordance with § 6 of these terms and conditions shall not be affected.

 (3) Non-availability of the service in accordance with Paragraph 1 shall be present in case of non-timely self-delivery if we have concluded a congruent covering transaction, neither us nor our supplier are at fault or we are not obliged to provide procurement in individual cases.

 (4) Should the customer fail to fulfil contractual obligations on time - also co-operation or ancillary obligations, in particular the opening of a letter of credit, the provision of domestic or foreign certificates, the payment of a deposit, the checking of drawings or samples or similar, we shall be entitled to reasonably postpone our delivery times in accordance with the requirements of our production cycle, regardless of our rights concerning default on the part of the customer.

 (5) The entry of our delivery delay shall be determined in accordance with the statutory regulations. However, in all cases, a warning by the customer shall be necessary.

 

 § 3 Delivery, transfer of risk, acceptance, delay in acceptance

 (1) The delivery shall take place from the factory, which is also the place of performance. At the request and expense of the customer, the goods will be dispatched to a different location (purchase of dispatch). Unless otherwise agreed, we shall be entitled to choose the type of dispatch, in particular the transportation company, transportation route and packaging by ourselves.

 (2) The risk of accidental loss and accidental impairment of the goods shall be transferred to the customer at the latest on handover. However, in case of purchase of dispatch the risk of accidental loss and accidental impairment of the goods, as well as the risk of delay, shall be transferred on delivery to the shipping agent, freight carrier or other persons involved in the dispatch of the order. To the extent that an acceptance is agreed, this shall be decisive for the transfer of risk. Otherwise, the statutory regulations shall apply to an agreed acceptance accordingly. The handover and acceptance shall be deemed to have taken place if the customer is in acceptance default.

 (3) Should the customer enter acceptance default, the risk shall be transferred to it at the time of commencement of the acceptance default. Furthermore, in case of acceptance default, should the customer fail to provide a co-operation action or should our delivery be delayed for reasons for which the customer is responsible, we shall be entitled to demand compensation for the losses incurred, including additional expenses (such as storage costs).

 (4) Unless otherwise agreed, the goods shall be delivered unpacked and not protected against rust. Should packaging be agreed, packaging materials and disposable pallets shall be charged for in accordance with usual trade prices and we shall not accept return.

 

§ 4 Prices and terms and conditions of payment

 (1) Unless otherwise agreed, our prices shall apply ex-works, plus the respectively applicable value added tax.

 (2) In case of purchase of dispatch (§ 3 (1)), the customer shall bear the transportation costs from the factory and the cost of any transportation insurance requested by the customer. Any customs levies, fees, taxes and other public duties shall be borne by the customer. We shall not accept return of transportation and all other packaging in accordance with the Packaging Ordinance; these shall become the property of the customer, with the exception of euro pallets.

 (3) Unless otherwise agreed, payments shall take place immediately following receipt of the invoice, without a discount. Discounts must be agreed separately and shall only be granted if the customer is not in default with other invoices.

 (4) The customer shall enter default should it not make payment within 14 days of receipt of the invoice and delivery of the goods. During the period of default, interest shall be paid on the purchase price at the respectively applicable statutory interest rate. We shall reserve the right to assert further default claims. Our claim for the commercial maturity interest (§ 353 of the German Commercial Code – HGB) against merchants shall remain unaffected.

 (5) The customer shall only be entitled to rights of set off and retention to the extent that its claim has been recognised by declaratory judgement or is undisputed. In case of defects to the delivery, the rights of the customer under § 6 (5) of these terms and conditions shall not be affected.

 (6) Should it become apparent following conclusion of the contract that our claim to the purchase price is endangered due to lack of payment capacity of the customer (for example due to an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory regulations and, if applicable, to rescind the contract following the setting of a period of grace (§ 321 of the German Civil Code - BGB). In the case of contracts for the manufacture of specific items (making to specification) we can declare rescission immediately; the statutory regulations concerning the dispensability of the setting of periods of grace shall not be affected.

 

§ 5 Reservation of ownership

 (1) We shall retain ownership in respect of the sold goods until full payment of all of our current and future claims under the sales agreement and of an ongoing business relationship (secured claims).

 (2) The goods which are subject to this reservation of ownership may not be pledged to third parties or be provided as security until full payment of the secured claims has been made. The customer shall inform us in writing should third party attacks take place against the goods which belong to us.

 (3) In case of breach of contract on the part of the customer, in particular in case of non-payment of the purchase price due, we shall be entitled, in accordance with the statutory regulations, to rescind the contract and/or demand return of the goods due to the reservation of ownership. Should the customer fail to pay the purchase price which is due, we shall only be able to assert the said rights if we have unsuccessfully set the customer a reasonable deadline for payment or if such a setting of a deadline is dispensable in accordance with the statutory regulations.

 (4) The customer shall be authorised to sell on the goods which are under reservation of ownership in the course of proper business dealings and/or to process them and/or to remodel them. In such a case, the following provisions shall additionally apply:

 (a) The reservation of ownership shall extend to the products which exist as a result of the processing, mixing or combination of our goods to their full value, whereby we shall be deemed to be the manufacturer. If the ownership rights of third parties remain in existence during the processing, mixing or combination with their goods, we shall acquire co-ownership in relation to the objective invoice value of the processed, mixed or combined goods. Furthermore the same applies for the resulting product as for the supplied goods which are subject to retention of title

 (b) The customer assigns to us now and immediately all claims against third parties arising from the resale of the goods or products equal to the amount of our approximate share of joint ownership pursuant to the aforementioned clause as security.   
We shall accept the assignment. The obligations incumbent on the customer named in Paragraph 2 shall also apply in respect of the assigned claims.

 (c) The customer shall remain authorised to collect the claim, alongside us. We shall be obliged not to collect the claim if the customer complies with its payment obligations in relation to us, does not enter payment default, no application is filed for the opening of insolvency proceedings and no other incapacity to make payment is present. However, should this be the case, we shall be able to demand that the customer informs us of the assigned claims and their debtors and provides us with all information which is necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.

 (d) Should the realisable value of the securities exceed our claims by more than 10 percent, we shall release securities in accordance with our choice on the request of the customer.

 

§ 6 Defect claims of the customer

 (1) The statutory regulations shall apply to the rights of the customer in case of material defects and defects of title (including wrong delivery and shortfall in delivery, as well as improper installation or defective assembly instructions), unless otherwise prescribed below. In all cases, the statutory special regulations in case of final delivery of the goods to a consumer shall not be affected (supplier's recourse in accordance with §§ 478 and 479 of the German Civil Code - BGB).

 (2) The basis of our liability for defects shall be, above all, the agreement concluded concerning the quality of the goods. Should the quality not have been agreed, it shall be assessed in accordance with the statutory regulations (§ 434 Paragraph 1 Sentences 2 and 3 of the German Civil Code - BGB) as to whether a defect is present or not. We shall not however accept any liability in respect of public statements made by the manufacturer or other third parties (for example advertising messages).

 (3) The defect claims of the customer shall require that it has complied with its statutory inspection and complaint obligations (§§ 377 and 381 of the German Commercial Code - HGB). Should a defect be discovered during inspection or subsequently, we shall be immediately provided with a written notice. The notice shall be deemed to have been immediate if it takes place within one week, whereby its timely sending shall suffice for compliance with the deadline. Should the customer fail to undertake proper inspection and/or notification of defects, our liability in respect of the defects which have not been notified shall be excluded.

 (4) Should the delivered object be defective, the customer shall be initially able to demand correction of the defect (improvement) or the delivery of a defect-free object (subsequent delivery). Should the customer fail to make a decision within a reasonable deadline granted to it, the right of choice shall be transferred to us following the expiry of the deadline.

 (5) We shall be entitled to make the subsequent performance dependent on the customer paying the purchase price which is due. However, the customer shall be entitled to retain a part of the purchase price which is reasonably proportional to the defect.

 (6) The customer shall give us the necessary time and opportunity to carry out the subsequent performance which we are obliged to perform, in particular the goods in respect of which the complaint has been made shall be handed over for checking purposes. In case of replacement delivery, the customer shall return the defective object to us in accordance with the statutory regulations.

 (7) The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transportation, travel, work and material costs, shall be borne by us if a defect is actually present. However, should a request of the customer to deal with defects be shown to be unjustified, we shall be entitled to demand that the customer reimburses the costs incurred as a result.

 (8) In urgent cases, for example endangerment of operational safety or to prevent disproportional damage, the customer shall have the right to deal with the defect itself and to demand from us reimbursement of the objectively necessary expenses in this respect. We shall be immediately informed, if possible in advance, of such a dealing with the defect by the customer. The right of the customer to deal with the defect itself shall not exist if we would be entitled to refuse to carry out such subsequent performance in accordance with the statutory regulations.

 (9) Should subsequent performance have failed or should a reasonable period of grace to be set by the customer have fruitlessly expired, or should this be dispensable in accordance with the statutory provisions, the customer shall be entitled to rescind the sales agreement or to reduce the purchase price. However, no right of rescission shall exist in relation to minor defects.

 (10) Claims of the customer for damages and reimbursement of necessary expenses shall only exist in accordance with § 7 and shall be otherwise excluded.

 

§ 7 Other liability

 (1) Unless otherwise stated in these terms and conditions, including the provisions below, we shall incur liability in case of breach of contractual and non-contractual obligations in accordance with the applicable statutory regulations.

 (2) We shall incur liability to pay damages in case of intent and gross negligence, regardless of legal reason. In case of simple negligence, we shall only incur liability as follows: 

 (a) for losses connected to injury to life, body or health, as well as

 (b) for losses connected to breach of a significant contractual obligation (an obligation whose fulfilment enables proper performance of the contract and on whose compliance the contracting partner regularly relies on and may rely on); however, in such a case, our liability shall be limited to reimbursement of the typically foreseeable loss.

 (3) The restrictions of liability under Paragraph 2 shall not apply if we have fraudulently concealed a defect or have provided a guarantee in respect of the quality of the goods. The same shall apply to claims of the customer in accordance with the German Product Liability Act (Produkthaftungsgesetz).

 (4) The customer shall only be able to rescind or terminate the contract due to a breach which does not concern a defect if we are responsible for the said breach of obligation. A free right of termination of the customer (in particular in accordance with §§ 651 and 649 of the German Civil Code - BGB) shall be excluded. Otherwise, the statutory requirements and legal consequences shall apply.

 

§ 8 Statute of limitation

 (1) In deviation from § 438 Paragraph 1 Number 3 of the German Civil Code (BGB), the general statute of limitation for claims due to material defects and defects of title in respect of newly manufactured goods shall amount to one year from delivery. In case of second-hand goods, the guarantee shall be excluded, unless this concerns a purchase of consumer goods. The special statutory regulations for claims of third parties in rem for the return of property (§ 438 Paragraph 1 Number 1 of the German Civil Code (BGB)) shall not be affected in case of fraud on the part of the seller (§ 438 Paragraph 3 BGB) and for claims in supplier's recourse in case of final delivery to a consumer (§ 479 BGB).

 (2) The statutes of limitation of the right of purchase shall also apply to contractual and non-contractual damages claims of the customer which refer to defects in the goods, unless the application of the regular statute of limitation (§§ 195 and 199 BGB) would lead to a shorter period in an individual case. The statutes of limitation of the German Product Liability Act (Produkthaftungsgesetz) shall not be affected in any case. Otherwise the statutes of limitation under law shall exclusively apply to damages claims of the customer in accordance with § 7.

 

§ 10 Choice of law, place of jurisdiction

 (1) The law of the Federal Republic of Germany shall apply to these terms and conditions and all legal relationships between ourselves and the customer, to the exclusion of all international and supernational (contractual) legal ordinances, in particular the UN Convention on the International Sale of Goods. The requirements and effects of the retention of ownership in accordance with § 5 shall however be subject to the laws of the respective place of storage of the object, if, under the said law, a choice of law made in favour of German law is not permitted or is void.

 (2) Should the customer be a merchant as defined in the German Commercial Code (Handelsgesetzbuch), a legal person under public law or a special fund under public law, the exclusive place of jurisdiction, also internationally, for all disputes arising directly or indirectly under the contractual relationship shall be our place of business in Memmingen, Germany. However, we shall also be entitled to bring lawsuits at the general place of jurisdiction of the customer.

 

Memmingen, 01.02.2014

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