GENERAL TERMS AND CONDITIONS (for B2B Customers)

1. GENERAL INFORMATION, SCOPE OF APPLICATION

1.1. The following terms and conditions shall apply to the entire present and future business relationship with our customers, even if no express reference is made to the T&Cs. Terms and conditions of the customer that deviate from or extend these T&Cs shall not form part of the contract, unless we have expressly agreed to such in writing.

1.2. Our offers (particularly in catalogs and price lists), order confirmations, sales, and deliveries shall always be based exclusively on our T&Cs, unless we have expressly agreed to the application of different terms and conditions in writing. Modifications, additions, and/or deletions shall require our express written consent in order to be valid. The same shall apply to verbal side agreements.

1.3. Our goods shall be delivered exclusively in the designs specified in our latest catalogs, brochures, and price lists. We reserve the right to make technical changes in line with technical progress. Changes in shape, color, and weight are considered reasonable. We may reject orders on justified grounds, for example in the event of cessation of production, production difficulties, failure of upstream suppliers, unexpectedly high demand, or similar.

2. PRICES AND DELIVERY FEES

2.1. The prices and delivery fees specified in our offer – particularly the latest price lists or our written order confirmation – are to be understood as exclusive of statutory VAT in the relevant amount. The prices given in our catalogs, brochures, and price lists are in euros.

2.2. Unless expressly stated otherwise, the prices in our catalogs, brochures, and price lists refer to the items pictured as described, and not to any content, accessories, or decoration.

2.3. The prices given in our catalogs, brochures, and price lists are correct at the point of publication of the relevant document. We reserve the right to make price changes after this point. Our customers shall receive new price lists – specifying the recommended retail prices – in good time before they enter into force.

3. DELIVERY

3.1. Unless agreed otherwise, delivery shall be made from our dispatch warehouse within the delivery period specified in the order confirmation, without there being a binding date. We reserve the right to make partial deliveries; such shall be permissible as long as reasonable for the customer. Partial deliveries may be billed separately. We shall bear any higher costs associated with making partial deliveries.

3.2. In the event that the delivery period is exceeded, the customer shall initially only be entitled to set a reasonable grace period. Should we fail to deliver within this grace period, the customer shall be entitled to withdraw from the contract, but only if we are responsible for the delay. The customer shall not be entitled to compensation on account of the delay in delivery, or compensation in place of performance. This shall not apply in cases of intent, gross negligence, or injury to life, body, or health, whereby mandatory liability applies. Recourse claims as set out in Section 478 of the German Civil Code (BGB) shall not be affected. However, the customer is obligated, upon our request and within a reasonable period, to declare whether he wishes to withdraw from the contract on account of the delay in delivery, or whether he wishes to insist on delivery. An alteration to the burden of proof to the disadvantage of the customer is not implied by these regulations.

3.3. The risk of destruction, loss, or deterioration of the goods, as well as the price risk, shall transfer to the customer upon dispatch of the goods to the persons tasked with shipping. The same shall apply as regards the risk of delayed delivery.

3.4. In the event of default on acceptance on the part of the customer, failure to perform an act of cooperation, or a delay in delivery for other reasons for which the customer is responsible, we shall – regardless of other rights due to us – be entitled to claim compensation for the damage that we suffered, including all associated additional expenses. In addition, in such a case the risk of accidental deterioration or loss of the goods shall transfer to the customer.

4. SELLER’S RIGHT OF WITHDRAWAL

In the event that delivery is impossible for us, even within a reasonable grace period, for reasons outside of our control, e.g. in cases of incorrect and/or untimely delivery by our upstream suppliers, force majeure, official measures, interruptions to operations, strikes, or similar, we shall be entitled to withdraw from the contract, either fully or in part. Should we withdraw from the contract, we shall immediately refund any counter-performance already rendered by the customer.

5. RETENTION OF TITLE

5.1. Goods shall remain under our ownership until complete payment of all outstanding claims under the business relationship, including ancillary claims, claims for compensation, and cashing of checks and bills.

5.2. The retention of title shall remain in place even if individual claims have been integrated into a current invoice, and the balance has been determined and acknowledged.

5.3. The customer shall only be entitled to resell goods subject to retention of title in accordance with the following provisions, and on the condition that the claims specified in this regulation are transferred to us.

5.4. The customer’s authorization to sell goods subject to retention of title in the course of ordinary business shall end upon revocation by us as the result of a permanent deterioration in the customer’s financial situation, at the latest upon cessation of payment, or application for and/or the launch of insolvency proceedings concerning his assets.

5.5. The customer hereby cedes all claims and all ancillary rights arising from the reselling of goods subject to retention of title – including any outstanding balances – to us. If the customer has sold the claim within the scope of non-re- course factoring, our claim shall fall due immediately; the customer shall assign his claim against the factor to us, and pass the sales revenue received from the factor on to us immediately. We hereby accept such assignment.

5.6. The customer shall be entitled to collect the assigned claims as long and as far as he meets his payment obligations. This entitlement to collect shall expire upon revocation, at the latest upon default on payment by the customer and/or considerable deterioration of the customer’s financial situation. In such a case, we may threaten the customer with collection of the claim by us or by a third party appointed by us, setting a reasonable grace period. If the grace period passes without result, the customer authorizes us to disclose the authority to collect, to inform the purchasers of the assignment, and to collect the claims ourselves. Upon request, the customer undertakes to provide us with a complete and accurate list of the claims due to us, with the full names and valid addresses of purchasers. This list must also state the amount of the individual claims, and all of the key invoicing data. In addition, the customer shall provide us with all information required to assert the assigned claims, and allow us to check such information. We shall be entitled to commission legal or tax consultancy professionals to conduct such checks.

5.7. Should the value of the security provided for us exceed our claims by more than 20% overall, we shall, at the written request of the customer or of a third party that is being negatively affected by over-securing, release part (of our choosing) of the security rights.

5.8. Any pledging or transfer of the goods subject to retention of title or assigned claims by way of security is prohibited. The customer undertakes to immediately inform us of any enforcement measures, in particular seizure of the goods subject to retention of title, specifying the pledgee and all of the details of the enforcement. In the event of seizure or other intervention by third parties, the customer shall highlight the rights due to us, and inform the third party in writing immediately so that we may exercise our rights accordingly. If the third party is unable to reimburse us for the in-court or out-of-court costs that we incur, the customer shall be liable for the same.

5.9. In the event of a breach of obligations by the customer as per Item 5, in particular in the event of default on payment, we shall, after setting a reasonable grace period, be entitled to withdraw from the contract and take back the goods. The statutory provisions regarding dispensability of a grace period shall not be affected.
The customer hereby permits us or a third party authorized by us in writing to collect goods that are subject to retention of title and have not yet been paid for from him or from any third party with whom they are stored. He shall grant us or our authorized representative access to the premises for such purpose. The customer shall be obligated to hand over the goods. Should we take back the item(s) delivered on account of retention of title, this shall not be seen as withdrawal from the contract. Withdrawal shall only occur if we expressly declare such in writing. We shall be entitled to sell the goods that we have taken back through our choice of auction or direct sale, and offset the revenue against the purchase price claim, or withdraw from the contract.

5.10. The customer shall store the goods subject to retention of title for us free of charge. The customer undertakes to treat the goods with care, and store them separately. He shall insure them, at his own expense and to a customary and appropriate extent, against the usual risks, e.g. fire, theft, and water damage. The customer hereby assigns any compensation claims that he has with insurance companies or similar as a result of damage of the aforementioned nature to us, up to the amount of the goods’ invoice value. We hereby accept such assignment.

5.11. The customer undertakes to offer the goods for purchase or pre-order at least 1 week before the arrival date.

5.12. The customer undertakes to inform us immediately of any change to his registered office, the name of his company, or the legal form of his company if there are still outstanding claims arising from delivered goods.

6. PAYMENT

6.1. The terms of payment set out in our offer – particularly in the latest price lists or in the written order confirmation – shall be decisive as regards the payment of our invoices.
Particularly in the case of first-time customers or if a customer is already on default on payment, and irrespective of other existing rights, we reserve the right to render supply to a customer subject to advance payment, or request any other reasonable and suitable securities.

6.2. In the event that the payment deadline is exceeded, the customer shall owe interest in the statutory amount as a minimum (consumers 5% above base interest rate, merchants 9% above base interest rate), as of entering into default at the latest. This shall also apply to deferments. We reserve the right to provide evidence of greater damage caused by default, and impose a higher rate. In such a case, the customer shall be entitled to prove that we have suffered lesser or no damage as a result of the delay. However, the customer shall always owe interest in the statutory amount in the event of default.

6.3. Should the customer be in default on payment of at least two invoices, cease payment, or conduct out-of-court settlement proceedings, or should an application be made to launch insolvency proceedings regarding the customer’s assets, all of our invoices shall fall due immediately. In such cases, we shall – contrary to any previous agreements – also be entitled to demand advance payment or provision of securities. In addition, in such cases we shall be entitled, without further reason, to fully or partially withdraw from all ongoing contracts concluded with the customer, as well as claiming compensation.

6.4. The customer may only offset claims against counterclaims that are legally established, undisputed, or recognized by us. The same shall apply to the assertion of rights of retention by the customer.

6.5. In addition, the customer may only assert a right of retention on the basis of counterclaims having their foundation in the same contractual relationship.

7. WARRANTY AND RETURNS, LIMITATION

7.1. The customer undertakes to examine and check deliveries for any material defects and for compliance with the stipulations of the contract straight away. Material defects discovered during this check must be reported to us immediately. Should the customer fail to examine the goods or report defects in good time, the delivered goods shall be considered accepted, unless the defect was not identifiable upon examination. Notification of a defect must be in writing, including reasons and a precise description of the defect.
The goods subject to complaint must be able to be viewed and checked by a party appointed by us at any time. If a defect was not identifiable upon examination, the customer must also report any defects discovered later to us immediately in writing. Should the customer fail to notify us, the delivery shall be considered accepted, even with these defects. In addition, Sections 377 et seqq. of the German Commercial Code (HGB) shall apply accordingly. Obvious defects must be reported to us within a period of 10 days after receiving the goods, otherwise the assertion of any warranty claim shall be excluded. The notification period for defects identifiable through a normal examination is 14 days. Timely dispatch of the notification shall be deemed sufficient as regards meeting the deadline. The customer shall bear the burden of proof.

7.2. Industry-standard deviations in dimensions, design, coloration, etc. shall not constitute grounds for complaint, particularly for repeat orders. Claims for defects shall not exist in the event of minor deviation from the agreed properties and/or usability, natural wear and tear, or damage caused after transfer of risk by improper or negligent treatment, excessive strain, or, in particular, external influences not specified in the contract.

7.3. Any modification or repair of the goods delivered by us without prior express written consent shall render our warranty invalid. The same shall apply in the event of improper storage, or other deviations from the intended use of the goods. The assertion of warranty claims shall not affect our existing payment claims. In the event of default on payment, our warranty obligations shall be suspended until complete fulfillment of payment obligations by the customer.
We shall not provide any guarantee regarding damage to batteries, unless such already existed upon dispatch of the goods. We conduct a specific check of each individual battery before dispatch. The customer shall bear the burden of proof as regards the claim that there was a defect in these items before or upon dispatch.

7.4. In the event of justified complaints, we shall either repair or replace the defective goods within the limitation period, if the cause existed at the point of transfer of risk. The customer must provide us with the necessary time and opportunity to render the supplementary performance that we see fit. Replaced parts shall remain under our ownership.

7.5. In the event of supplementary performance, we shall not be liable for the fees, cost increases, or other expenses, e.g. labor, material, transportation, road, or ancillary costs, incurred due to the goods to be repaired or replaced having to be collected from or delivered to a location different from the original delivery location.

7.6. Claims for material defects shall expire 12 months after delivery of the goods. This shall not apply if the law prescribes longer limitation periods in Sections 438 I No. 2 or 479 I BGB, in cases of injury to life, body or health, in the event of a deliberate or grossly negligent violation of obligations on our part, or in the event of fraudulent concealment of a defect. The statutory regulations on suspension of expiration, suspension, and recommencement of limitation periods shall not be affected.

7.7. The customer shall only be entitled to recourse against us in accordance with Section 478 BGB if he has not made any agreements going beyond the statutory claims for defects with his purchaser. The regulation set out in Item 7.5 shall apply accordingly to the scope of the customer’s entitlement to recourse against us as per Section 478 II BGB.
The customer shall not be entitled to confirm a defect in products supplied by us, or make other acknowledgments or commitments to his customer regarding the warranty for defects, without our prior written consent. We shall generally not be liable for warranties or other guarantees that the customer gives to his customers and that go beyond those set out in these T&Cs. This shall not apply in the event that we have a further warranty liability to the end consumer on the basis of mandatory statutory provisions.

7.8. Should the supplementary performance fail, the customer may – notwithstanding any claims for compensation as set out in Item 9 – withdraw from the contract, or reduce the remuneration.

7.9. If the customer has complained unjustly, we shall be entitled to request reimbursement of the costs that we have incurred from the customer. If we repair parts of a delivery or provide a replacement for certain parts, this shall not lead to an extension of the warranty period for the remaining parts delivered.

7.10. Otherwise, the regulation of customer claims for compensation set out in Item 9 shall be final. Claims of the customer against us and our vicarious agents on account of material defects that go beyond or are different to those specified in Item 7 shall be excluded.

7.11. The return of non-defective goods, specifying the ORTOVOX customer number and the ORTOVOX invoice number, shall only be permissible with express prior written consent from ORTOVOX. Returns of non-defective goods shall only be credited if the goods are received by ORTOVOX in a fully sellable condition. ORTOVOX reserves the right to reduce the credit by a reasonable amount.

8. TRANSPORTATION DAMAGE

Should the customer notice damage to the packaging upon receipt of the goods, he undertakes to have the damage confirmed in writing by the transportation provider upon acceptance of the goods. Transportation damage that is only noticed after the packaging is removed must be reported to us in writing within 5 days of receipt. Timely dispatch of the notification shall be deemed sufficient as regards meeting the deadline. The customer shall bear the burden of proof.

9. CLAIMS FOR COMPENSATION

9.1. Should delivery be impossible for us, the customer shall be entitled to request compensation, unless we are not responsible for the inability to deliver. The customer’s entitlement shall be limited to 10% of the value of the part of the delivery that we were unable to make. This limitation shall not apply in cases of intent, gross negligence, or injury to life, body, or health, whereby mandatory liability applies. An alteration to the burden of proof to the disadvantage of the customer is not implied hereby. The customer’s right to withdraw from the contract shall not be affected.

9.2. Should our business experience unforeseeable events, as set out in Item 4, or should the financial significance or content of the performance incumbent upon us change to a considerable extent, the contract must be adapted accordingly and in good faith to suit the changed circumstances. Should this be financially unreasonable, we shall be entitled to withdraw from the contract.
However, in such a case we undertake to inform the customer fully as soon as we are aware of the significance of the event. This obligation shall apply to us even if an extension of the delivery date was previously agreed with the customer.

9.3. Otherwise, claims for compensation and reimbursement of expenses asserted by the customer, on whatever legal basis – particularly on account of breach of obligations under the contract, or tort – shall be excluded. This shall not apply where liability is non-negotiable, e.g. in accordance with product lia- bility law, in cases of intent or gross negligence, in cases of injury to life, body or health, or in the event of violation of material contractual obligations. The customer’s claims for compensation due to violation of material contractual obligations shall, however, be limited to foreseeable damage typical for the contract, apart from in the case of intent, gross negligence, or injury to life, body or health. An alteration to the burden of proof to the disadvantage of the customer is not implied by these regulations.

9.4. If the customer is entitled to claims for compensation in accordance with Item 9, these shall expire at the end of the limitation period applicable to claims for material defects, as set out in Item 7.6. In the case of claims for compensation under product liability law, the statutory limitation periods shall apply.

10. STORAGE OF DATA AND CONFIDENTIALITY OF INFORMATION

10.1. The data required to conduct business with the customer shall be stored by us in the permissible scope and within the boundaries of the Federal Data Protection Act (BDSG) and the German Telemedia Act (TMG), as well as forwarded on to companies affiliated with us in accordance with Sections 15 et seqq. of the German Stock Corporation Act (AktG) – in particular other companies of the Schwan-STABILO group – as part of order processing.
Personal information shall be treated as confidential. The customer agrees to collection, processing, and use of his data within the aforementioned scope.

10.2. Where we grant the customer access to our electronic Intranet, the customer undertakes to refrain from passing the data, passwords, and/or other access rights arising from the business relationship on to unauthorized third parties, and to implement the latest technical measures available to protect such data from any access or misuse by third parties. The customer’s obligation to protect the data shall also apply in the context of storage of data. Any storage of such data in third-party cloud memories shall require prior written consent from us.

10.3. Unless they are publicly accessible, generally known, or clearly intended to be passed on, the customer shall treat all information and materials that we give him as confidential, and shall not copy, publish, disclose, or otherwise make the same available to third parties without our express written consent. At the end of the business relationship with us, the customer must return these documents and information to us, or destroy them – whichever we choose. Proof of destruction must be submitted to us.

11. PLACE OF FULFILLMENT, PLACE OF JURISDICTION, GOVERNING LAW

11.1. The place of fulfillment for all mutual claims arising from our business relationship with the customer is Taufkirchen.

11.2. The exclusive place of jurisdiction is Munich. However, we shall also be entitled to take legal action at the registered office of the customer.

11.3. The contractual relationship shall be exclusively subject to the laws of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

12. FINAL PROVISIONS

12.1. All understandings and agreements reached verbally between our customer and us must be set out in writing in order to be legally binding. The written form requirement may also be satisfied by fax or email.

12.2. Should individual provisions of the contract between us and the customer, including these T&Cs, be or become fully or partially invalid, or should there prove to be a loophole, this shall not affect the validity of the remaining provisions. In this event, the seller and the customer expressly undertake to agree on a regulation that comes as close as possible to the intended economic purpose.

12.3. We reserve the right to modify and/or add to these T&Cs at any time. In such a case, we shall provide the customer with a written and/or electronic version of the new T&Cs straight away; this shall fully replace the existing version of the T&Cs. However, all orders already placed by the customer and confirmed by us at the point at which the new T&Cs are sent shall be executed on the basis of the T&Cs in force at the point of order confirmation.

AS OF OCTOBER 2017