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General Terms and Conditions of SerWeMa GmbH & Co. KG

I. General information

1 All deliveries and services are based on these terms and conditions and any separate contractual agreements. Deviating terms and conditions of purchase of the customer shall not become part of the contract even upon acceptance of the order. In the absence of a separate agreement, a contract is concluded with the written order confirmation of the supplier.

2. the supplier retains the right to samples, cost estimates, drawings and the like. information of a physical and non-physical nature - including in electronic form - property and copyright; they may not be made accessible to third parties. The Supplier undertakes to make information and documents designated by the Purchaser as confidential available to third parties only with the Purchaser's consent.

II. price and payment

1. in the absence of a special agreement, the prices shall apply ex works, including loading at the factory, but excluding packaging and unloading. Value added tax at the respective statutory rate is added to the prices.

2. in the absence of a special agreement, payment shall be made without any deduction to the account of the supplier, namely
1/3 down payment after receipt of the order confirmation,
1/3 as soon as the customer has been informed that the main parts are ready for dispatch,
the remaining amount within one month after the transfer of risk.

3. the customer shall only be entitled to withhold payments or offset them against counterclaims to the extent that his counterclaims are undisputed or have been legally established.

III. delivery time, delay in delivery

1. the delivery time results from the agreements of the contracting parties. Compliance with it by the Supplier presupposes that all commercial and technical questions between the contracting parties have been clarified and that the Purchaser has fulfilled all obligations incumbent upon him, such as the provision of the necessary official certificates or permits or the payment of a deposit. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if the Supplier is responsible for the delay.

2. compliance with the delivery period is subject to correct and timely delivery to us. The supplier shall inform us as soon as possible of any impending delays.

3) The delivery period shall be deemed to have been observed if the delivery item has left the Supplier's works or readiness for dispatch has been notified by the end of the period. Insofar as acceptance is required, the acceptance date is decisive - except in the case of justified refusal of acceptance - or alternatively the notification of readiness for acceptance.

4. if the dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the costs incurred by the delay shall be charged to him, beginning one month after notification of readiness for dispatch or acceptance.

5. if the non-compliance with the delivery time is due to force majeure, labour disputes or other events beyond the supplier's control, the delivery time shall be extended accordingly. The Supplier shall notify the Purchaser of the beginning and end of such circumstances as soon as possible.

6. the customer may withdraw from the contract without notice if the supplier is finally unable to provide the entire performance before the transfer of risk. In addition, the Purchaser may withdraw from the contract if, in the case of an order, the performance of part of the delivery becomes impossible and the Purchaser has a justified interest in refusing partial delivery. If this is not the case, the customer shall pay the contract price attributable to the partial delivery. The same applies in the event of incapacity on the part of the supplier. Otherwise, Section VII. 2 shall apply.
If the impossibility or incapacity occurs during the delay in acceptance or if the customer is solely or predominantly responsible for these circumstances, he shall remain obliged to make counter-performance.

7) If the supplier is in default and the customer suffers damage as a result, he is entitled to demand a lump-sum compensation for default. For each full week of the delay, this compensation shall amount to 0.5%, but not more than 5% in total, of the value of that part of the total delivery which cannot be used on time or in accordance with the contract due to the delay.
If, after the due date, the Purchaser sets the Supplier a reasonable deadline for performance - taking into account the statutory exceptions - and if the deadline is not met, the Purchaser shall be entitled to withdraw from the contract within the framework of the statutory provisions.

Further claims arising from delay in delivery shall be determined exclusively in accordance with Section VII. 2 of these terms and conditions.

IV. Transfer of risk, acceptance

1. the risk shall pass to the customer when the delivery item has left the factory, even if partial deliveries are made or the supplier has assumed other services, e.g. shipping costs or delivery and installation. Insofar as an acceptance is to take place, this is decisive for the transfer of risk. It must be carried out immediately on the acceptance date, alternatively after the Supplier has notified the Purchaser that the goods are ready for acceptance. The Purchaser may not refuse acceptance in the event of an insignificant defect.

2. if dispatch or acceptance is delayed or does not take place due to circumstances not attributable to the supplier, the risk shall pass to the customer on the day of notification of readiness for dispatch or acceptance. The Supplier undertakes to take out the insurance policies requested by the Purchaser at the latter's expense.

3. partial deliveries are permissible, as far as reasonable for the customer.

V. Reservation of title

1. the supplier retains title to the delivery item until receipt of all payments under the delivery contract.

2. the supplier is entitled to insure the delivery item against theft, breakage, fire, water and other damage at the expense of the customer, unless the customer has demonstrably taken out the insurance himself.

3. the customer may neither sell, pledge nor assign the delivery item as security. In the event of seizure, confiscation or other dispositions by third parties, he must inform the supplier immediately.

4. in the event of conduct on the part of the customer in breach of contract, in particular default of payment, the supplier shall be entitled to take back the delivery item after a reminder and the customer shall be obliged to surrender it.

5) Based on the reservation of title, the supplier can only demand the return of the delivery item if he has withdrawn from the contract.

6. the application for the opening of insolvency proceedings entitles the supplier to withdraw from the contract and to demand the immediate return of the delivery item.

VI. claims for defects

The supplier provides the following warranty for material defects and defects of title in the delivery, excluding further claims - subject to Section VII:

Material defects

1. all those parts which prove to be defective as a result of a circumstance occurring before the transfer of risk shall be repaired or replaced free of charge at the discretion of the supplier. The discovery of such defects shall be notified to the Supplier in writing without delay. Replaced parts become the property of the supplier.

2. after consultation with the supplier, the customer must give the supplier the necessary time and opportunity to carry out all the repairs and replacement deliveries which the supplier deems necessary; otherwise the supplier is released from liability for the consequences arising from this. Only in urgent cases where operational safety is endangered or to prevent disproportionately large damage, in which case the Supplier must be informed immediately, shall the Purchaser have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary expenses from the Supplier.

3. of the direct costs arising from the repair or replacement delivery, the supplier shall bear the costs of the replacement part including shipping - provided that the complaint proves to be justified. He shall also bear the costs of dismantling and installation as well as the costs of any necessary provision of the necessary fitters and assistants, including travel costs, provided that this does not result in a disproportionate burden on the supplier.

4. within the framework of the statutory provisions, the purchaser has the right to withdraw from the contract if the supplier - taking into account the statutory exceptions - allows a reasonable period of time set for him for the repair or replacement delivery due to a material defect to elapse fruitlessly If the defect is only insignificant, the Purchaser shall only be entitled to a reduction of the contract price. The right to reduce the contract price is otherwise excluded.
Further claims shall be determined in accordance with Section VII. 2 of these terms and conditions.

5. no guarantee is given in the following cases in particular:
Unsuitable or improper use, faulty assembly or commissioning by the Purchaser or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences - insofar as the Supplier is not responsible for them.

6. if the customer or a third party carries out repairs improperly, the supplier shall not be liable for the resulting consequences.
The same applies to changes to the delivery item made without the prior consent of the supplier.

Defects of title

7. if the use of the delivery item leads to an infringement of industrial property rights or copyrights in Germany, the supplier shall, at its own expense, generally procure the right of further use for the customer or modify the delivery item in a manner reasonable for the customer in such a way that the infringement of property rights no longer exists.
If this is not possible under economically reasonable conditions or within a reasonable period of time, the purchaser is entitled to withdraw from the contract. Under the aforementioned conditions, the Supplier shall also be entitled to withdraw from the contract.
In addition, the Supplier shall indemnify the Purchaser against undisputed or legally established claims of the respective owners of the property rights.

8. the obligations of the supplier mentioned in section VI. 7 are, subject to section VII. 2, final in the event of an infringement of property rights and copyrights.
They only exist if
- the customer informs the supplier without delay of asserted infringements of property rights and copyright,
- the Purchaser supports the Supplier to a reasonable extent in the defence against the asserted claims or supports the Supplier in the execution of the
modification measures in accordance with Section VI. 7,
- the supplier reserves the right to all defensive measures including out-of-court settlements,
- the defect of title is not based on an instruction of the customer,
- the infringement of rights was not caused by the fact that the customer has arbitrarily changed the delivery item or used it in a way not in accordance with the contract.

VII Liability

If the delivery item cannot be used by the customer in accordance with the contract through the fault of the supplier as a result of omitted or faulty implementation of suggestions and advice made before or after conclusion of the contract or through the breach of other contractual secondary obligations - in particular instructions for operation and maintenance of the delivery item - the provisions of Sections VI and VII. 2 shall apply accordingly, excluding further claims of the customer.

2) For damages which have not occurred to the delivery item itself, the supplier is only liable - for whatever legal reasons - for
a. in case of intent,
b. in the event of gross negligence on the part of the owner/bodies or executive employees,
c. in the event of culpable injury to life, body or health,
d. in the case of defects that have been fraudulently concealed or whose absence he has guaranteed,
e. in the case of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.

In the event of culpable violation of essential contractual obligations, the Supplier shall also be liable for gross negligence of non-executive employees and for slight negligence, in the latter case limited to reasonably foreseeable damage typical for the contract.
Further claims are excluded.

VIII. Limitation period

All claims of the purchaser - for whatever legal reasons - shall become statute-barred after 12 months. For claims for damages according to section VII. 2 a - e, the statutory periods shall apply. They shall also apply to defects in a building or to delivery items which have been used for a building in accordance with their normal use and have caused its defectiveness.

IX. Software use

Insofar as software is included in the scope of delivery, the customer is granted a non-exclusive right to use the delivered software including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
The customer may only copy, revise, translate or convert the software from the object code to the source code to the extent permitted by law (§§ 69 a ff. UrhG). The customer undertakes not to remove manufacturer's details - in particular copyright notices - or to change them without the express prior consent of the supplier. All other rights to the software and the documentation including the copies remain with the Supplier or the software supplier. The granting of sub-licenses is not permitted.

X. Applicable law, place of jurisdiction

All legal relations between the Supplier and the Purchaser shall be governed exclusively by the law of the Federal Republic of Germany applicable to legal relations between domestic parties.

2. place of jurisdiction is the court responsible for the supplier's registered office. However, the supplier is entitled to bring an action at the customer's headquarters.

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