General sales and service conditions of CUPASO Deutschland GmbH

§ 1

Scope

(1)
Our terms and conditions apply exclusively and without renewed explicit reference also to all future deliveries of goods and services that we provide to the customer. We do not accept contradictory or deviating conditions of the customer, unless we have expressly agreed to their validity in writing. This also applies if we carry out the delivery without reservation in knowledge of conflicting or deviating conditions of the customer.

(2)
Our terms and conditions apply only to entrepreneurs, legal entities of public law and public law special funds in the sense of § 310 paragraph 1 BGB.

§ 2
Offer and Conclusion of Contract

(1)
Our offers are non-binding, unless they are expressly designated as binding. The customer is bound to his order for two weeks. The contract is concluded either by our written acceptance of the order, order confirmation or delivery of goods.

(2)
The customer agrees that we may obtain information about his creditworthiness and economic circumstances. In the case of a negative information, we reserve the right to deliver the goods only against prepayment. If third-party funding is envisaged, we may also require proof of funding prior to delivery.

(3)
Illustrations, descriptions, dimensions and quantities are only binding if this has been previously agreed in writing with the customer. The quality of the service to be provided by us is based exclusively on the written contractual documents. Changes in design and material remain reserved, as far as they are not fundamental and the contractual purpose of the delivery not limited for the customer.

(4)
If the customer wants to change the contractually agreed scope of service to be provided by us, he must express this change request in writing to us. The costs for the resulting expenses (e.g. preparation of a modifed proposal, downtimes, etc.) shall be borne by the customer as far as we agree with his request for change.

§ 3
Quantities and measurements, samples, duties of cooperation

(1)
With the conclusion of the contract, the customer confirms that all quantities and dimensions in his orders or documents are based on his verified information. If deviations from the customer's information subsequently emerge, additional costs incurred as a result are at the customer's expense.

(2)
The customer appoints a technically competent contact person who is available to us for necessary information and who can make the decisions necessary for the execution of the order or can bring it about without delay.

(3)
The customer creates all conditions to enable a proper execution of the order. In particular, the customer will ensure that all required contributions on his or his agents' part are provided on time, to the required extent and free of charge for us.

(4)
If the operation of a customer's machine is required for the execution of the order, the latter will provide responsible, qualified operating personnel of his company.

(5)
The customer must also provide us with the customer-specific documents required for the execution and other necessary in-house information without any special request.

(6)
The customer must provide us with sufficient free samples and packaging material for retracting and accepting the machine. If this does not happen and therefore additional work occurs, for example because we have to travel several times, the customer has to reimburse us for the related costs.

(6)
The customer is liable for delays or errors in the execution of the contract if these result from performance data submitted by him, incorrect or incomplete information or other circumstances for which he is responsible.

§ 4
Prices, terms of payment

(1)
The prices listed in the order confirmation or the order plus the statutory value-added tax are decisive.

(2)
The statutory sales tax is not included in our prices; it will be shown separately in the bill at the statutory rate on the date of invoicing.

(3)
Deduction of discount requires special written agreement.

(4)
Unless otherwise agreed, invoice amounts are due for payment immediately. The legal rules regarding the consequences of late payment apply.


§ 5
Delivery time, deadlines, partial deliveries

(1)
Binding delivery times and dates require our written confirmation, which can also be issued by fax or e-mail. The periods commence upon receipt of the confirmation by the customer and, in the case of purchase contracts, are understood as the time of delivery ex works and, in the case of contracts for work and services, as the time of completion. he beginning of the specified period presupposes the clarification of all technical questions, the timely fulfillment of the customer's obligations and the availability of the documents and approvals to be provided by him. Any changes in the execution requested by the customer after conclusion of the contract shall extend the delivery periods and dates accordingly. We reserve the right to plead non-performance of the contract.

(2)
Unforeseen events for which we are not responsible (in particular strikes, force majeure and unpunctual self-supply) extend the agreed delivery periods and dates for the duration of the delay plus an appropriate start-up period. The customer must be informed immediately of these circumstances; should the delay last longer than 6 months, he is entitled to withdraw from the contract after setting a reasonable period of grace, insofar as this has not yet been fulfilled. We are also entitled to this right, whereby setting a grace period is not necessary in this case.

(3)
If we are released from our performance obligation according to the above paragraph, or if the delivery period or the agreed exemption date is extended, the customer has no claims for damages.

(4)
Unless otherwise agreed in the contract, partial deliveries by us are just as permissible as deliveries before the expiry of the agreed delivery time.

(5)
In the absence of other agreements, call-off orders agreed with the customer must be settled within a maximum of twelve months by means of retrievals from him. If this is not done, we are entitled to pass on any price increases to the customer that have occurred in the meantime.

(6)
If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for any damage incurred, including any additional expenses. Further claims or rights are reserved. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time when the latter is in default of acceptance or payment.

(7)
We are liable according to the legal provisions, as far as the underlying contract is a fixed transaction in the sense of § 286 Abs. 2 Nr. 4 BGB or of § 376 HGB. We shall also be liable in accordance with the statutory provisions, insofar as the customer is entitled to assert that his interest in the further performance of the contract has ceased to exist as a consequence of a delay in delivery for which we are responsible.

(8)
Furthermore, we are liable according to the legal provisions if the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible; a fault of our representatives or agents is attributable to us. If the delay in delivery is based on a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.

(9)
We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; In this case, however, the liability for damages is limited to the predictable, typically occurring damage. Significant contractual obligations are those which arise from the nature of the respective contract and whose breach endangers the achievement of the purpose of the contract.

(10)
Incidentally, in the event of default in delivery, we shall be liable for maximum damages of 5% of the delivery value.

§ 6
Transfer of risk, acceptance

(1)
In all cases - including the risk of confiscation - the risk shall pass to the customer when the delivery item is handed over to the carrier, even in the case of carriage paid delivery. This also applies if we transport the goods ourselves. If dispatch is delayed for reasons within the customer's sphere of responsibility, the risk shall pass to the customer upon notification of readiness for dispatch.

(2)
Unless otherwise agreed, we determine the manner of packaging and shipping. If the customer requests it in writing, we cover the delivery by a transport insurance at his expense.

(3)
In the case of work performances or agreed acceptance, the risk passes to the customer upon acceptance by the customer. A "Factory Acceptance Test" carried out at our facility is equivalent to acceptance if the customer has confirmed the functionality of the machine with his signature. The customer may not refuse acceptance for non-essential defects. Any costs for acceptance dates cannot be reimbursed to the customer.

§ 7
Retention of title

(1)
The goods remain our property until all claims arising from the business relationship with the customer have been met. In the event of breach of contract by the customer, in particular in case of default of payment, we are entitled to take back the goods, in which a withdrawal from the contract is to be seen.

(2)
In the case of seizures or other interventions by third parties, the customer must notify us in writing without delay so that we can file a third-party objection action in accordance with § 771 ZPO.

(3)
The customer may resell the reserved goods only in the ordinary course of business and as long as he is not in default towards us; however, he hereby assigns to us all claims in the amount of the final invoice amount (plus VAT) which accrue to him from the resale against his customers or third parties, irrespective of whether the goods have been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to do so as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and no application for the opening of insolvency proceedings has been filed or payments have not been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and the debtors, provides all information required for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.

(4)
The processing or transformation of the goods by the customer is always carried out for us. If the goods are processed with other objects not belonging to us, we acquire the co-ownership of the new object in proportion of the value of the goods (final invoice amount plus VAT) to the other processed objects at the time of processing. Incidentally, the same applies to the goods resulting from processing as for the goods delivered under reserve.

(5)
If the goods are inseparably mixed with other objects not belonging to us, we acquire co-ownership of the new object in proportion of the value of the goods to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, then it is agreed that the customer assigns proportional co-ownership to us. The customer keeps the resulting sole ownership or co-ownership for us.

(6)
In order to secure our claims against him, the customer also assigns to us the claims which accrue to him against a third party through the combination of the reserved goods with real estate.

(7)
We undertake to release the securities to which we are entitled at the customer's request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released is incumbent on us.

§ 8

Liability for defects, compensation for damages

(1)
Warranty claims of the customer presuppose that he has duly fulfilled his duties of inspection and notification of defects pursuant to § 377 HGB. For works services § 377 HGB applies accordingly.

(2)
We do not warrant for used goods, unless we are liable for malice or according to paragraph 6 below. In the case of new goods, the customer is initially limited to assert subsequent performance in the event of a defect, whereby we reserve the right to choose the type of subsequent performance. The customer has the right to reduce the subsequent performance in the event of multiple failures or to withdraw from the contract at his option.

(3)
We are entitled to refuse supplementary performance if it involves disproportionate costs for us. Instead of subsequent performance, the customer may be required to reduce the agreed price or cancel the contract.

(4)
We are liable according to the legal provisions, as far as the customer asserts claims for damages based on intent or gross negligence on the part of us, our representatives or agents. Unless there is a willful breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.

(5)
We shall be liable in accordance with the statutory provisions if we, our representatives or agents culpably violate a material contractual obligation; in this case, too, the liability for damages is limited to the foreseeable, typically occurring damage. Significant contractual obligations are those which arise from the nature of the respective contract and whose breach endangers the achievement of the purpose of the contract.

(6)
Liability for culpable injury to life, body or health remains unaffected; this also applies to the mandatory liability under the Product Liability Act.

(7)
Unless otherwise stipulated above, liability is excluded.

(8)
The limitation period for claims for defects is 12 months, calculated from the transfer of risk. The statutory period of limitation in the event of a delivery recourse according to §§ 478, 479 BGB and in the cases of §§ 438 para. 1 no. 2, 634a para. 1 no. 2 remains unaffected.

(9)
Further liability for damages as provided in the preceding paragraphs is excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from negligence on conclusion of the contract, due to other breaches of duty or due to tort claims for compensation for property damage in accordance with § 823 BGB. This limitation also applies insofar as the customer demands reimbursement of useless expenses instead of a claim for compensation for the damage instead of the service. Insofar as the liability for damages against us is excluded or limited, this also applies with regard to the personal liability for damages of our employees, representatives and agents.

(10)
Not covered by the preceding paragraphs are damages caused by default which are more specifically regulated in § 5 (7) to

§ 9
Software, liability for data loss

(1)
To the extent that we are liable for damages pursuant to § 8 above, our liability for data loss shall be limited to the typical recovery effort that would have incurred in the case of regular and complete backup copies of all data, structures and programs.

(2)
If our scope of use includes the use of third-party software products, the customer hereby already acknowledges the right of use of the software for this software. These are provided by us on request. We are not responsible for any malfunctions that are related to, or associated with, the operating system environments and configurations installed on the Customer. Our liability is also excluded if the software program is incompatible with the customer's hardware and / or software, unless we have provided consulting services in accordance with a written agreement.

§ 11
Assignment, set-off, retention

(1)
The customer is not entitled to assign claims or rights against us arising from the business relationship to third parties or to transfer them to third parties without our consent. The same applies to claims and rights arising directly against us by law.

(2)
The customer is only entitled to set-off rights if his counterclaims are legally established, undisputed or acknowledged by us.

(3)
The customer is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.

§ 12
Assignment to third parties

(1)
We are also entitled, without the prior consent of the customer, to pass on the order or parts of the order to third parties.

(2)
In these cases, we are liable for the third party as for our own agents.

§ 13
Place of performance, jurisdiction, applicable law

(1)
Place of performance and place of jurisdiction for disputes with merchants, legal persons under public law or special funds under public law is our registered office. In addition, we are entitled to sue the customer at his registered office.

(2)
The law of the Federal Republic of Germany applies; the validity of the UN sales law is excluded.

(3)
Should one of the above provisions be or become ineffective, the validity of the other regulations remains unaffected.