General Terms and Conditions of sale

§ 1    General, scope
(1)    These General Terms and Conditions of Sale apply to all the business relations of erfal GmbH & Co. KG (hereinafter:  „Seller“) with customers (hereinafter: the „Buyer“) The General Terms and Conditions of Sale only apply if the Buyer is an entrepreneur, a legal person under public law or represents special federal funds.
(2)    The General Terms and Conditions of Sale apply, in particular, to contracts on the sale and/or the delivery of movable items (hereinafter: „Goods“). The General Terms and Conditions of Sale also apply, as stated in their respective valid version, as a skeleton agreement to future contracts on the sale and/or the delivery of Goods with the same Buyer without the Seller having to repeatedly refer to these in each individual case. The Seller shall inform the Buyer of amendments to the General Terms and Conditions of Sale.
(3)    The General Terms and Conditions of Sale apply on an exclusive basis. General terms and conditions of business that vary, are to the contrary or apply in a supplementary manner of the Buyer shall only become integral part of the contract insofar as the Seller expressly agrees that these apply. This approval requirement shall apply in any case, including if the Seller unreservedly carries out the delivery to the Buyer although it is aware of the Buyer‘s general terms and conditions of business.
(4)    Individual agreements entered into with the Buyer in individual cases (including subsidiary agreements, supplementary information and amendments) shall in any case have preference over these General Terms and Conditions of Sale. A written contract, or written confirmation by the Seller‘s management, is deemed authoritative in respect of the content of such agreements.
(5)    Statements and notifications of legal relevance that are to be made by the Buyer to the Seller after the contract has been entered into (e.g. setting periods, notification of defects, issuing a withdrawal or stating a reduction in price) are subject to the written form in order to be deemed valid.

§ 2    Entering into contracts
(1)    Offers are subject to change without notice and are non-binding. This also applies if the catalogues, technical documentation (e.g. drawings, plans, evaluations, calculations and references to DIN norms), other product descriptions or documents - including in electronic form - have been surrendered to the Buyer. The Seller reserves ownership and copyrights to such documents.
(2)    An order placed by the Buyer for Goods is deemed a binding contractual offer. In the absence of provisions to the contrary in the order, the Seller is entitled to accept such a contractual offer within four weeks following receipt of such an offer.
(3)    Acceptance may be stated in writing (e.g. by way of an order confirmation) or by delivering the Goods to the Buyer.

§ 3    Delivery period and default in delivery
(1)    Details about delivery times are non-binding without any special agreement. The delivery time shall be deemed adhered to if the delivery item has left the plant, or notification of readiness for dispatch is given, up until expiry of the delivery time.
(2)    Insofar as delivery periods cannot be honoured for reasons that are not the Seller‘s responsibility (non-availability of the performance), the Buyer shall be informed of this, and the prospective new delivery period shall be simultaneously stated. If the performance is not available within the new delivery period either, the Seller shall be entitled to withdraw from the contract either in full or in part. Counter-performance already rendered by the Buyer at that time shall be reimbursed without delay. Non-timely own deliveries by suppliers are, in particular, deemed a case of non-availability of the performance if a concordant covering transaction has been entered into, if neither the Seller nor its suppliers are responsible or the Seller is not under obligation to procure.
(3)    The occurrence of default in delivery shall be determined in accordance with the statutory requirements. However, in any case the Buyer is required to issue a reminder. If the Seller defaults in delivery, the Buyer may request flat-rate compensation for damage caused by default. The flat-rate damage compensation shall be 0.5% of the net price (delivery value) for each full calendar week in which the default continues, in total, however, at most 5% of the delivery value of the goods that are subject to the delivery delay. The Seller further retains the option of furnishing proof that the Seller has not suffered any damage or has suffered significantly less damage that is reflected in the above flat-rate.
(4)    This does not affect the Buyer‘s rights set out in accordance with Section 9 of these General Terms and Conditions of Sale and the Seller‘s statutory rights, in particular in the case of an exclusion of the obligation to perform (e.g. because of impossibility or the performance is unacceptable and/or subsequent performance).

§ 4    Delivery, passing of risk, acceptance, default in acceptance
(1)    Goods shall be delivered from the warehouse, which is also deemed the place of performance. At the Buyer‘s request and cost, the Goods shall be sent to a different place of destination (sales shipment). In the absence of agreements to the contrary, the Seller is entitled to determine the type of shipment (in particular the transport company, shipping route and packaging).
(2)    The risk of possible loss and possible deterioration of the Goods shall pass to the Buyer at the latest at the hand-over. However, in the case of sales shipments the risk of possible loss and possible deterioration in the Goods and

the risk of delay shall pass upon delivery of the Goods to the forwarding agent, the carrier or another person or establishment entrusted with shipping. Insofar as acceptance has been agreed upon, it shall be authoritative for the passing of risk. If the Customer defaults in acceptance, the hand-over or acceptance shall be deemed to have taken place.
(3)    If the Buyer defaults in acceptance, fails to collaborate or delays the delivery for other reasons that are the Buyer‘s responsibility, the Seller shall be entitled to request compensation for the resulting damage, including additional expenses (e.g. warehouse costs, attempted delivery). In this respect the Seller reserves the right to calculate compensation of at least € 5 for each calendar day starting with the delivery period or - in absence of a delivery period - the notification of readiness for dispatching the Goods. This does not affect the Seller‘s statutory claims (in particular compensation for additional expenses, reasonable compensation, and termination). The Customer is free to furnish proof that the Seller has not suffered any damage at all or has merely suffered significantly less damage than that stated.

§ 5    Prices and payment conditions, delay of payment and legal costs
(1)     In the absence of agreements to the contrary in an individual case, the respective prices valid at the time of entering into the contract shall apply, with effect from the Seller‘s registered office, plus the statutory value added tax.
(2)    In the case of sales shipments (Section 4, sub-section 1) DAP (Falkenstein) shall apply in accordance with Incoterms® 2010. The Seller reserves the right to calculate the freight costs, including packaging that is additionally required as a result.
(3)    In the absence of agreements to the contrary, invoices fall due and are pay-
able within 30 days from the invoice date without deductions. The Seller is entitled to request an advance payment, and set off incoming payments initially to outstanding interest and costs, and then against outstanding receivables.
(4)    The Buyer shall be deemed to be in default upon expiry of the above payment period. The invoice amount shall bear interest during the default at the respective, valid statutory interest rate for delinquent accounts. The Seller reserves the right to assert further-reaching claims for damage caused by default. This does not affect claims in dealings between merchants for the commercial interest after the due date.
(5)    The vendor is entitled to carry out appropriate legal actions and to engage a collection agency or a lawyer with the law enforcement if the buyer is in delay. The buyer must bear all legal costs (e. g. dunning costs, collection and/ or legal expenses). The vendor expressly reserves the right to assert further claims. The above is also valid in the case that the buyer is domiciled abroad.
(6)    The Buyer shall only enjoy setting off or retention rights insofar as its claim has become res judicata or is not disputed. Defects in respect of the delivery shall not affect the Buyer’s counter-rights, in particular in accordance with Section 7, sub-section 6, sentence 2 of these General Terms and Conditions of Sale.
(7)    If it becomes clear after entering into the contract that the Seller’s claim regarding the invoice amount is jeopardised as a result of lacking ability to pay on the part of the Buyer (e.g. by way of an application filed for the institution of insolvency proceedings), the Seller shall be entitled in accordance with the statutory requirements to refuse to perform and – where applicable after the setting of a period – withdraw from the contract. In the case of contracts for the manufacture of inseparable items (custom productions), the Seller may withdraw with immediate effect. This does not affect the statutory regulations on the dispensability of setting of a period.

§ 6    Reservation of title
(1)    Up until payment in full of all current and future claims on the part of the Seller resulting from the contract of purchase, and an ongoing business relationship (secured claims), the Seller reserves the right to ownership of the sold Goods.
(2)    Prior to payment in full of the secured claims, the reserved Goods may neither be pledged to third-parties nor may the ownership thereof be transferred by way of security. The Buyer is to inform the Seller in writing without delay if and insofar as third-parties access the Goods that are the Seller’s property.
(3)    In the case of conduct that is in breach of contract, in particular in the event of failure to pay the due invoice amount, the Seller shall be entitled in accordance with the statutory requirements to withdraw from the contract and request surrender of the Goods due to the reservation of title and the withdrawal. If the Buyer fails to pay the due invoice amount, the Seller may only exercise such rights if the Buyer had beforehand been set a period of reasonable length in which to make the payment, which the Buyer allowed to lapse in vain, or if the setting of such a period is dispensable in accordance with the statutory requirements.
(4)    The Buyer is authorised to sell and/or process the reserved goods by way of normal business activities. In such a case, the following provisions apply on a supplementary basis.
    (a)    The reservation of title applies to the products created by way of the processing, mixing or blending the Goods at their full value, whereby the Seller is deemed the manufacturer. In the case of processing, mixing or blending with third-party goods, if the ownership rights to such goods remain in place, the Seller shall acquire co-ownership proportio-
nate to the invoice values of the processed, mixed or blended Goods. In other respects, the created product shall be subject to the same provisions that apply to the Goods delivered as reserved goods.
    (b)    The Buyer assigns in full to the Seller at this point in time the claims against third-parties resulting from the sale of the Goods or the created General Terms and Conditions of Sale product, or in the sum of a potential co-ownership share of the Seller in accordance with the above sub-section as
security. The Seller accepts the assignment. The Buyer’s obligations set out in sub-section 2 also apply with consideration given to the assigned claims.
    (c)    The Buyer shall retain the authority, in addition to the Seller, to collect the claim. The Seller undertakes not to collect the claim as long as the Buyer honours its payments obligations to the Seller, does not default in payment, does not file an application for the institution of insolvency proceedings and no other shortcoming in respect of its ability to pay applies. However, if this is the case, the Seller may request that the Buyer discloses to the Seller the assigned claims and the debtors in that respect, that it provides all the necessary information, surrenders the appertaining documents and informs the debtors (third-parties) of the assignment.
    (d)    If the realisable value of the securities exceeds the Seller’s claims by more than 10 %, it shall, at the Buyer’s request, release securities its discretion.

§ 7    Customer‘s warranty claims
(1)    In the absence of provisions to the contrary below, the statutory requirements apply to the Buyer’s rights in the case of material defects and defects of title (including wrong and shortfall deliveries). The statutory special requirements in the case of the final delivery of the goods to an ultimate consumer area not affected in any case.
(2)    The Seller is permitted to make customary and/or technically unavoidable alterations to the from the seller documented descriptions of the offered products, for example in respect of the colour, weight, equipment or design, in particular in the case of textiles. Wear-and-tear or parts that are subject to wear-and-tear are excluded from warranty claims once the Goods have been used.
(3)    Insofar as an agreement was not entered into regarding the quality, an assessment is to be made in accordance with the statutory regulation as to whether or not a defect applies. The Seller does not accept any liability for public comments made by third-parties (e.g. advertising statements).
(4)    The Buyer’s warranty claims are conditional on the fact that it has honoured its statutory obligation to inspect and provide notification of defects. If it becomes clear during an inspection, or at a later date, that the Goods are faulty, the Seller is to be informed of this in writing without delay. Notification will be deemed given without delay if it is given immediately whereby the timely sending of the notification is deemed sufficient to honour the period. Irrespective of such an obligation to inspect and provide notification of defects, the Buyer is to provide written notification of obvious defects (including wrong and shortfall deliveries) within eight days from the delivery, whereby in this case too the timely sending of the notification is deemed sufficient to honour the period. If the Buyer fails to properly inspect the Goods or provide notification of defects, the Seller shall be exempt from liability for defects for which notification is not given. In the case of identifiable defects, notification of defects shall be excluded if processing the Goods had already commenced. Notification of defects is to be provided without delay once such defects are identified in the case of hidden defects.
(5)    In the case of justified complaints, for which the Seller is responsible, the Seller shall replace the Goods or rectify the defect in the most cost-effective way.
(6)    The Seller is entitled to render the due subsequent performance conditional on the fact that the Buyer pays the due purchase price. However, the Buyer is entitled to retain a part of the purchase price that is commensurate to the defect.
(7)    The Buyer is to grant the Seller the time and opportunity required to perform the due subsequent performance, in particular hand-over the goods for which notification of defects has been given for test purposes. In the event of replacement, the Buyer is to hand back the faulty item to the Seller in accordance with the statutory requirements. The subsequent performance shall neither constitute the dismantling of the faulty item nor the renewed installation if the Seller was not originally under obligation to install.
(8)    In the event of rectifying an actual defect, the Seller undertakes to carry all expenses required to rectify the defect, but only to carry transport, travel, work and material costs insofar as these are not increased because the Goods have been brought to a location other than the place of performance. However, should the Buyer’s request for rectification of defects prove to be unjustified, the Seller may request that the Buyer carry the resulting costs.
(9)    In urgent cases, for example in the event of a risk to operational safety or to ward-off disproportionate damage, the Buyer shall be entitled to have the defect rectified and request that the Seller provide compensation for the objective expenses required in that respect. The Seller is to be informed without delay prior to such action on the part of the Buyer, where possible in advance. The Buyer’s right to take such action shall not apply if the Seller would have been justified in refusing corresponding subsequent performance in accordance with the statutory requirements.
(10)    If the subsequent performance has failed or if a period of reasonable length to be set by the Buyer is allowed to lapse in vain or is dispensable in accordance with the statutory requirements, the Buyer may withdraw
from the contract or reduce the purchase price. However, a right to with-
draw shall not apply in the event of insignificant defects.
(11)    The Buyer’s claims for compensatory damages or compensation for expenses incurred in vain, including the loss of expected profits or other pecuniary damage sustained by the Buyer shall only apply in accordance with Section 9 and in other respects are excluded.

§ 8    Taking back returns
The Seller shall decide in individual cases whether or not it shall take back returns that do not apply to the Buyer‘s warranty claims, but rather, for example, are attributable to wrong orders. An obligation in that respect does not apply.
Taking back returns is conditional on the fact that returning the Goods had been harmonised with the Seller in advance, the Goods are not damaged, they are in the original packaging and the appertaining invoice number is stated.
The Seller reserves the right to charge a reasonable expense allowance for processing returns of 20 % of the Goods value, at least, however, € 5. Products that were delivered more than six months ago are excluded from the option of taking back returns.

§ 9    Other liability
(1)    Insofar as nothing to the contrary is stated in these General Terms and Conditions of Sale, including the following provisions, the Seller shall be liable in accordance with the pertinent statutory requirements in the case of violating contractual and non-contractual obligations.
(2)    The Seller shall be liable for compensatory damages - irrespective on whichever legal grounds such claims are based - in the case of intent and gross negligence. In the case of basic negligence, the Seller shall only be liable
a)    for damage resulting from the loss of life, physical injury or detrimental effects on health,
    b)    for damage resulting from the violation of a key contractual obligation (obligation the honouring of which renders the execution of the contract at all possible and adherence to which the contracting party normally relies and may rely). However, in this case, liability on the part of the Seller is limited to compensation for foreseeable damage that occurs in a typical manner.
(3)    The liability limitations resulting from sub-section 2 shall not apply insofar as a defect was maliciously concealed by the Seller or a guarantee was provided for the quality of the Goods. This provision does not affect the Buyer‘s claims in accordance with the German Product Liability Act.
(4)    The Buyer may only withdraw or terminate because of a violation of an obligation that does not involve a defect if the Seller is responsible for violating the obligation. A free right to terminate on the part of the Buyer is excluded. In other respects, the statutory requirements and legal consequences apply.

§ 10  Statute of limitations
(1)    Contrary to Section 438, sub-section 1, no. 3 BGB (German Civil Code), the general period of limitations for claims resulting from material defects and defects of title is one year from delivery. Insofar as acceptance has been agreed upon, the period of limitations shall commence upon the acceptance.
(2)    The above period of limitations set out in sales law also applies to contractual and non-contractual claims for damages on the part of the Buyer based on a defect in the Goods unless application of the normal statutory limitation period would give rise to a shorter period of limitation in an individual case. This shall not affect the limitation periods of the German Product Liability Act in any case. Otherwise, solely the statutory limitation periods apply to the Buyer‘s claims for damages in accordance with Section 9.

§ 11  Choice of law and place of jurisdiction
(1)    The law of the Federal Republic of Germany applies to these General Terms and Conditions of Sale by way of exclusion of the United Nations Convention on Contracts for the International Sale of Goods. Prerequisites and effects of the reservation of title in accordance with Section 6 are subject to the law that applies at the respective location at which the item is stored insofar as the law chosen as a result in favour of German law is inadmissible or invalid.
(2)    If the Buyer is a merchant within the meaning of the commercial law, a legal person under public law or represents special federal funds, the sole - and international - place of jurisdiction for all direct and indirect disputes resulting from the contractual relationship is the Seller‘s registered office. However, the Seller is also entitled to bring an action at the Buyer‘s general place of jurisdiction.

§ 12  Safeguarding clause
In the event that individual provisions of these General Terms and Conditions of Sale are or become wholly or partially invalid, this shall not affect the validity of the provisions in other respects. The invalid, void or contestable provision is to be reworded, i.e. amended or supplemented, such that the purpose pursued by such a provision is achieved as best as possible as part of the statutory requirements. The same applies in the event of a loophole.

erfal GmbH & Co. KG
Gewerbering 8
08223 Falkenstein
Germany

Tel.: +49 3745 / 750 0
Internet: www.erfal.de

06 / 2018