General Terms and Conditions of Sale of ALLMATIC-Jakob Spannsysteme GmbH

CHE-423.372.354 MWST

§ 1 General

(1) These Terms and Conditions of Sale apply to all purchase contracts, contracts for labour and materials and assembly contracts of ALLMATIC-Jakob Spannsysteme GmbH, Jägermühle 10, 87647 Unterthingau (hereinafter referred to as “the seller”), for its customers. They also apply in their respective version published on the website of the seller as a general agreement for future contracts pertaining to the sale and/or supply of movable property with the same customer, without the seller having to refer to them again specifically in individual cases. The seller will inform the customer immediately in the event of any changes.

(2) These conditions of sale do not apply to contracts with consumers.

(3) Divergent regulations of the customers do not apply unless agreed to in writing by the seller. This requirement of agreement always applies, for example also if the seller unreservedly effects delivery to the customer with knowledge of the General Terms and Conditions of the customer. Agreements reached with the customer in individual cases (also subsidiary agreements, supplements and modifications) always have priority over these conditions of sale. For the contents of such agreements, a written contract or the written confirmation of the seller takes precedence. Legally relevant declarations and notifications which are to be submitted by the customer to the seller after conclusion of the contract (e.g. specification of deadlines, reminders, declaration of withdrawal) are only effective in written form.

(4) Vicarious agents and representatives of the seller are not authorised to reach verbal agreements. If, nevertheless, verbal agreements are reached or assurances given which go beyond the written purchase contract, these are always only effective with the written confirmation of the seller.

(5) The business transactions between the seller and the customer are subject to the laws of the Federal Republic of Germany. The terms of international uniform law, in particular the UN Sales Convention, do not apply. Pre-conditions and effects of the reservation of title pursuant to section 10 are subject to the law at the respective location of the subject matter, insofar as, under said law, the choice of law in favour of German law is inadmissible or invalid.

(6) The place of performance and jurisdiction for deliveries and payments as well as for all disputes arising between the parties from the contracts concluded between them is the registered office ofthe seller in Unterthingau. The seller is also entitled to sue the customer at his registered office.

§ 2 Conclusion of contract

(1) Quotations of the seller are always subject to change and without obligation. This also applies when the seller has provided the customer with catalogues, documentation (e.g. drawings, plans, costings, calculations), other product descriptions or documents – also in electronic form – to which the seller reserves proprietary rights and copyrights. Such documents are only entrusted for the purposes of the individual quotation and must not be copied or made available to third parties in full or in part without the permission of the seller. This applies in particular to such documents marked “confidential”. Before disclosure to third parties, the customer requires the express written permission of the seller.

(2) Orders of the customer via the swiss online shop are treated as a binding contractual offer. In all cases, a purchase contract and other agreements only come into force on confirmation of the order by the seller in written form.

(3) The minimum value for orders is CHF 20.00 (net).

(4) The employees, sales representatives, agents or other sales intermediaries of the seller are not authorised to refrain from the requirement of written order confirmation or to make statements which differ in content or to offer guarantees.

§ 3 Prices

Unless otherwise agreed in individual contracts, the prices of the seller currently valid at the time of conclusion of the contract apply, including loading ex works or warehouse, excluding statutory value added tax as well as all other costs for packaging, freight and customs and transport insurance premium, which are charged to the buyer.

§ 4 Terms of payment

(1) Unless otherwise agreed, payment is to be effected without deductions within 30 days of conclusion of contract. In the event of foreign transfers, bank charges incurred are always to be paid by the customer. If the seller accepts drafts or heques as payment in exceptional circumstances, these are only accepted on account of performance. If the seller separately agrees payment of the invoice amount by credit card with the customer, a payment fee of 3% applies, to be borne by the customer. In the case of payment by cheque, the transaction fee to be paid by the customer of CHF 40,00 applies.

(2) If the customer falls into arrears, the seller is entitled to interest on arrears of 9 percentage points above the basic interest rate. Pursuant to § 288 section 5 BGB, the customer is obliged to pay the seller a lump sum reminder fee of CHF 40.00. This is charged to any prosecution costs. The right to claim further damage remains unaffected.

(3) The customer bears all costs for return deliveries not caused by defective delivery by the seller.

(4) If the customer falls into arrears of at least 10 % of the total claim, the following is agreed: all claims of the seller are due immediately. The seller is entitled to make further processing of all orders of the customer dependent on a pre-payment or security or to refuse their further fulfilment after granting a reasonable extension period. If it becomes clear after conclusion of the contract that the entitlement of the seller to the purchase price is jeopardised by a lack of solvency of the customer, the seller is entitled to withdraw from the contract in accordance with the statutory regulations on refusal of service and after granting an extension where applicable.

§ 5 Delivery period and delay in delivery

(1) The delivery period is individually agreed or specified by the seller on acceptance of the order. In this case, observation of the delivery period by the seller requires fulfilment of the contractual obligations by the customer.

(2) In the case of delivery periods specified by the seller, this is non-binding information, even in the event of written notification. The lapse of certain delivery dates does not exempt the customer from the duty to set a reasonable extension to provide the service and to declare that he will refuse to accept the service after expiry of the deadline. This does not apply insofar as the seller has expressly described a deadline or date and in writing as a so-called “binding delivery date”.

(3) Insofar as the seller cannot meet binding delivery deadlines for reasons for which he is not responsible (non-availability of service), the seller will inform the customer thereof without delay and at the same time specify the expected new delivery deadline. If the service is also not available within the new delivery period, the seller is authorised to completely or partially withdraw from the contract. The seller will refund any payment already effected by the customer without delay. The customer’s rights of withdrawal and termination pursuant to section 8 of these conditions of sale also remain unaffected.

(4) The seller is entitled to effect reasonable part-deliveries.

(5) If the seller defaults on delivery, the customer can demand lump sum compensation for damages caused by default. The lump sum damages amount to 0.5 % of the net price (delivery value) for each completed calendar week of the default, in total, however, a maximum of 5 % of the delivery value of the goods delivered late. The seller reserves the right to establish that the buyer has suffered no or significantly less damage than the above-mentioned lump sum.

(6) If the customer is in default of acceptance, omits to provide an act of co-operation or if the delivery is delayed for other reasons for which the customer is responsible, the seller is entitled to demand compensation of the damage thus resulting, including additional expense (e.g. warehousing costs). For this, the seller charges lump sum compensation in the amount of 0.5 % per calendar day (to a maximum of 5 %), beginning with the delivery deadline or – in the absence of a delivery deadline – with notification of readiness for dispatch of the goods. Proof of higher damage and of the statutory rights (in particular reimbursement of additional expense, reasonable compensation, termination) remain unaffected. However, the lump sum is to be offset against further monetary claims. The customer reserves the right to establish that the seller has suffered no or significantly less damage than the above-mentioned lump sum.

§ 6 Property rights

(1) The seller reserves the commercial property rights and copyrights to all delivered products, packaging, diagrams and other documents. The customer may only use such documents with the prior express written permission of the seller, without the former deriving independent rights to advertising material.

(2) The customer undertakes not to infringe third party property rights (patents, licenses, trademarks etc.) on resale of the goods acquired from the seller. The customer is also prohibited to produce and use his own images of the products and packaging.

§ 7 Transfer of risk

The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest on delivery of the goods. However, in the case of a mail order purchase, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes already on delivery of the goods to the forwarder, the carrier or the person or institution other wise appointed to effect shipment. Insofar as acceptance is agreed, this is decisive for the passage of risk. In other respects, the statutory regulations of the law on contracts for work and services also apply accordingly to an agreed acceptance. The same applies to delivery or acceptance if the customer is in default of acceptance.

§ 8 Warranty

(1) The statutory regulations apply to the rights of the customer in the event of material defects and defects of title (including incorrect and short deliveries) unless otherwise specified in the following. The special statutory regulations remain unaffected in all cases on final delivery of the goods to a consumer (supplier regress according to §§ 478, 479 BGB).

(2) The liability for defects of the seller is based primarily on the agreement concluded on the properties of the goods. The agreement on the properties of the goods consists in the product descriptions referred to as such which were submitted to the customer before acceptance of the offer or in the same way as these conditions of sale were included in the contract.

(3) The claims for defects on the part of the customer require that he has complied with the statutory obligation of inspection and notification of defects (§§ 377, 381 HGB). Complaints are to be made in writing at the latest within two weeks of receipt of the goods, whereby timely dispatch of the notification shall suffice as observance of the deadline. If the customer fails to perform proper inspection and/or to report defects, liability of the seller for the unreported defect is excluded.

(4) The following circumstances do not represent defects:
• damage due to natural wear and tear of parts subject to wear;
• damage caused by incorrect, in particular lack of or insufficient maintenance;
• Damage caused by incorrect electrical connection by the customer as per the VDE directives or the electrical engineering standards valid in the country of use.
• damage as a result of failure to observe operating and maintenance instructions.

(5) In the case of a justified complaint reported in due time, the seller will correct the defect by means of subsequent performance pursuant to § 439 BGB through subsequent delivery or elimination of the defect. The seller is not obliged to render subsequent performance if interventions in or modifications to the goods have been carried out without the permission of the seller, unless the customer furnishes proof that the defect was not caused by these interventions and modifications. In the event that subsequent performance is rejected or fails, or if acceptance thereof cannot be reasonably expected of the customer, the latter is entitled to withdraw or to reduce the price. No right of withdrawal exists in the case of an insignificant defect. Claims of the customer for compensation or reimbursement of expenses incurred in vain only exist to the extent of section 9 and are otherwise excluded.

(6) If the goods supplied are defective, the seller can first decide whether to effect subsequent performance through elimination of the defect (reworking) or through delivery of goods free of defects (replacement delivery). The right of the seller to refuse subsequent performance under the statutory conditions remains unaffected. In order to carry out all improvements and replacement deliveries which the seller deems necessary at his reasonable discretion, the customer has to allow the necessary time and opportunity, in agreement with the seller, otherwise the seller is exempt from liability for defects. The customer only has the right to eliminate the defect himself or have it eliminated by a third party and to claim reimbursement of the necessary costs from the seller in urgent cases of a danger to operational safety and to prevent a disproportionate level of damage, in which cases the seller is to be notified immediately. This right of the customer to eliminate the defect himself does not exist if the seller would be entitled to refuse corresponding subsequent performance in accordance with the statutory regulations.

(7) The seller is entitled to make the due subsequent performance dependent on the buyer paying the due purchase price. However, the buyer is entitled to retain an appropriate proportion of the purchase price in relation to the defect.

(8) If a defect actually exists, the seller bears the expense necessary for the purpose of inspection, in particular transport costs, travel expenses, labour and material costs (not dismantling and installation costs. Otherwise, the seller can claim reimbursement of the costs incurred as a result of unauthorised elimination of defects (in particular inspection and transport costs)
unless the lack of defects was not discernible for the buyer.

(9) The limitation period is based on the statutory regulations. We do not make use of the possibility of limiting our warranty. We give you a full 24-month warranty.

(10) In the event of fraudulent concealment of a defect or acceptance of the warranty for the properties of the item purchased at the time of passage of risk pursuant to § 444 BGB (declaration of the seller that the item purchased has certain properties on passage of risk and that the seller is prepared to assume responsibility for all consequences of the absence thereof regardless of fault), the rights of the customer are exclusively based on the statutory regulations.

§ 9 Exclusion of liability

(1) Outside of liability for material defects and defects of title, the seller is liable without limitation insofar as the cause of damage is attributable to intent or gross negligence. The seller is also liable for the slightly negligent breach of material obligations (obligations whose breach jeopardises the achievement of the contractual purpose) as well as for the infringement of cardinal obligations (obligations whose fulfilment is necessary for correct execution of the contract and on the observance of which the customer regularly relies), however in each case only for the foreseeable damage which is typical of the contract. The seller is not liable for slightly negligent breach of obligations other than those listed above.

(2) The liability restrictions of the above paragraphs do not apply in the event of injury to life, limb or health, for a defect after acceptance of a warranty for the properties of the product and in the event of fraudulent concealment of defects. Liability in accordance with the product liability law as well as with data protection regulations remains unaffected.

(3) If liability of the seller is excluded or restricted, this also applies to the personal liability of the employees, representatives and vicarious agents of the seller.

(4) If the end-customer of the goods is a consumer, the statutory regulations apply for the limitation period of any right of recourse of the customer against the seller.

(5) Mandatory provisions of the country of domicile of the customer from areas of the law such as product liability, sales law or others which cannot be waived or excluded by choice of law always remain reserved.

§ 10 Reciprocal rights, reservation of title

(1) The customer is only entitled to offset or retention rights insofar as his claim is legally established or undisputed. In the event of defects of the delivery, the reciprocal rights of the customer remain unaffected, in particular his right to retain an appropriate proportion of the purchase price in relation to the defect.

(2) All delivered goods remain the property (reserved goods) of the seller until complete payment of all current and future claims from the purchase contract and an ongoing business relationship (secured claims). If necessary, the seller is authorised to apply for registration of reservation of title in a register provided in accordance with the law at the registered office of the customer (retention of title register).

(3) The goods subject to reservation of title may not be pledged to third parties nor assigned as security until complete payment of the secured claims. The customer is to inform the seller in writing without delay if an application for the opening of insolvency procedures is made or insofar as third party access (e.g. pledges) to the goods belonging to the seller occurs.

(4) In the case of conduct of the customer in violation of the contract, in particular in the case of non-payment of the due purchase price, the seller is entitled to withdraw from the contract and/or demand return of the goods based on the reservation of title. The demand for return does not simultaneously constitute the declaration of withdrawal. Rather, the seller is entitled only to demand return of the goods and to reserve the right of withdrawal. If the customer does not pay the due purchase price, the seller may assert these rights if the seller has previously set the customer a reasonable deadline for payment without success or the setting of such a deadline is superfluous in accordance with the statutory regulations.

(5) Until withdrawal in accordance with c), the customer is authorised to resell and/or process the goods subject to retention of title in the course of normal business. In this case, the following provisions apply in addition.
a) Reservation of title extends to the products resulting from the processing, mixing or combining the goods of the seller in their full value, in which case the seller is considered to be the manufacturer. If the right of ownership of the goods remains in existence in the event of processing, mixing or combining with goods of third parties, the seller acquires coownership proportional to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under reservation of title.
b) The customer hereby assigns to the seller the claims against third parties resulting from the resale of the goods or products in total or in the amount of the proportion of co-ownership of the seller in accordance with the above-mentioned paragraph on security. The seller accepts the assignment. The obligations of the buyer stipulated in section 3 in Abs. 3 also apply with regard to the assigned claims.
c) The customer jointly retains the right to collect the claim with the seller. The seller undertakes not to collect the claim as long as the customer meets his obligations of payment to the seller, there is no limited ability to effect performance of the contract and the seller does not assert the reservation of title by exercising a right in accordance with section 4. Should this be the case, however, the seller can demand that the customer notifies the seller of the assigned claims and their debtors, provides all information required for collection, submits the associated documents and informs the debitors (third parties) of the assignment. In addition, the seller is entitled in this case to revoke the authorisation for the resale and further processing of the goods subject to reservation of title.
d) If the realisable value of the securities exceeds the claims of the seller by more than 10%, the seller will release securities of his choice at the request of the customer.

§ 11 Data protection

For the purpose of processing orders, enquiries and quotes issued by the customers or by third parties instructed by them in their name, the seller is entitled to store the data electronically and further process them. The seller is also entitled to forward data to third parties, in particular to banks and contractual partners, for the purpose of order processing. The provisions of the Bundesdatenschutzgesetz (BDSG = Federal Data Protection Act) are observed.

Fiscal representation:
Chamber of Commerce Germany – Switzerland
Tödistr. 60
CH-8002 Zürich

Date: 10.03.2017