General Terms and Conditions of Sale (GTCS)

§1 General

1.1. The following terms and conditions of sale apply exclusively to natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activity when concluding the legal transaction (entrepreneurs within the meaning of § 14 BGB).

1.2. We sell goods or provide services to entrepreneurs exclusively on the basis of our GTCS. They shall also apply to all future transactions with the customer without us having to refer to them again in each individual case; the current version of the GTCS is available atwww.americom.deAvailable. Deviating terms and conditions of the customer which we do not expressly recognise shall not become part of the contract, even if we do not expressly object to them. Our GTCS shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our GTCS.

§2 Offer - offer documents and order confirmation

(1) Our offers are non-binding.

(2) The order of the goods by the customer shall be deemed a binding contractual offer. We are entitled to accept this contractual offer within 2 weeks of its receipt by us.

(3) A delivery contract is only concluded upon written order confirmation from us, at the latest upon delivery. Objections may be submitted no later than two working days after receipt of this order confirmation. Transmission by remote data transmission shall fulfil the written form requirement.

(4) We reserve the property rights and copyrights to drawings, calculations and other documents. This also applies to such written documents that are labelled "confidential". The customer requires our express written consent before passing them on to third parties.

§3 Prices - Terms of payment

(1) Only the prices confirmed by us in writing shall be valid. These are ex works plus statutory VAT, postage, packaging, freight, insurance, etc.

(2) We reserve the right to change our prices appropriately if cost reductions or cost increases occur after conclusion of the contract, in particular due to increases in labour costs or changes in material prices. We shall provide evidence of these to the customer on request.

(3) Unless otherwise stated in the order confirmation, our invoices are payable within 10 days with a 2% discount or 30 days net.

(4) Upon expiry of the aforementioned payment period, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim against merchants for commercial maturity interest in accordance with § 353 HGB remains unaffected. In all other respects, the statutory provisions regarding the prerequisites and consequences of default in payment shall apply.

(5) Means of payment other than bank transfer, such as cash, cheque or cash on delivery, require a separate agreement. The date of receipt by us shall be decisive for the timeliness of payment.

(6) The customer may only offset counterclaims that are undisputed, recognised by us or legally established. The customer is only authorised to exercise a right of retention if his counterclaim is based on the same contractual relationship.

(7) If, after conclusion of the contract, we become aware of circumstances that call into question the creditworthiness of the customer, or if our claim to payment is significantly jeopardised due to the customer's financial collapse, or if the customer defaults on payment of the purchase price, we may demand advance payment or security within a reasonable period of time and refuse performance until our request has been fulfilled. In the event of refusal by the customer or fruitless expiry of the deadline, we shall be entitled to withdraw from the contract in whole or in part and to demand compensation in lieu of performance.

§4 Product adjustments

In any case, we reserve the right to make design, shape and technical improvements in line with the current state of the art up to the time of delivery, about which we shall also inform the customer without being requested to do so.

§5 Delivery time, delay in delivery

(1) The commencement of the delivery and performance dates specified by us is subject to all technical issues having been clarified and the customer's obligations having been duly fulfilled in good time. If this does not happen, the deadline shall be extended accordingly. The defence of non-performance of the contract remains reserved.

(2) The delivery period shall be extended by the duration of the hindrance in the event of force majeure, strike or delays for which we are not responsible. (3) We are authorised to make partial deliveries, provided that this does not result in any disadvantages for use.

(4) If the customer is in default of acceptance or culpably violates other obligations to co-operate, we shall be entitled to give priority to other orders from third parties and to extend the delivery time appropriately. Without prejudice to further claims, we shall be entitled to demand compensation for any damage incurred by us in this respect, including any additional expenses. In particular, we may, without prejudice to further rights, charge storage fees of 0.5 % for each month, but no more than 5 % of the price of the delayed delivery. Furthermore, in the case of call-off orders, we may set a one-month grace period for acceptance after the expiry of 12 months from order confirmation and then invoice the goods or services not accepted and charge reasonable storage fees or holding fees until acceptance.

(5) If the conditions of paragraph (4) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.

(6) We shall be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; any fault on the part of our representatives or vicarious agents shall be attributed to us. In the event of a grossly negligent breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage. This provision does not imply a change in the burden of proof to the detriment of the customer.

(7) Insofar as we are responsible for a delay in delivery under these provisions, our liability shall be limited to compensation of 0.5 % for each full week of delay, but not more than a total of 5 % of the price for the part of the delivery that cannot be used due to the delay.

(8) At our request, the customer shall be obliged to declare within a reasonable period of time whether it is cancelling the contract due to the delay in delivery or insisting on delivery.

§6 Delivery, transfer of risk - packaging costs

(1) Unless otherwise stated in the order confirmation, delivery "ex works/warehouse" is agreed. At the request and expense of the customer, the goods shall be dispatched to another destination at the customer's risk. In this case, the customer shall bear the transport costs ex warehouse. Any customs duties, fees, taxes and other public charges shall be borne by the customer. The mode and route of despatch shall be determined by us at our reasonable discretion.

(2) Transport packaging and all other disposable packaging will not be taken back.

(3) Small and stamped parts can be delivered as bulk goods. Individual items or special packaging shall only be provided by agreement.

(4) If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.

(5) In the case of deliveries abroad, the purchaser shall pay all transport costs incurred ex works. This means that once the goods have been handed over to the carrier, we have fulfilled the purchase contract - all further burdens and risks (customs, freight, loss, damage) are transferred to the buyer (EXW clause 2010 of the Inter-national Commercial Terms - Incoterms).

§7 Warranty rights and liability

(1) Our deliveries are free of material defects if they have the agreed quality at the time of the transfer of risk. The product descriptions and specifications contained in our catalogues and price lists on the basis of the relevant standard (z.B. DIN, ISO) are listed. Properties and characteristics other than or going beyond the expressly agreed quality of the deliveries are not owed. A warranty for a specific purpose or a specific suitability, duration of use or durability after the transfer of risk that goes beyond the warranty for this quality agreement shall only be assumed if this has been expressly agreed in writing; otherwise the risk of suitability and use shall be borne exclusively by the customer. Customary deviations in deliveries from different production series shall not be deemed defects. The same applies to generally reasonable deviations in the delivery of samples and specimens. Technical data, specifications and performance data in offers, contracts, annexes, advertising brochures and documentation etc. merely characterise the quality of the products and do not constitute guarantees unless they are designated as such.

(2) Defects must be reported in writing and without delay, at the latest within a period of 8 days. In the case of obvious defects, the period begins with the delivery, in the case of hidden defects with the discovery of the defect. If the customer fails to give notice, the delivery shall be deemed approved.

(3) If there is a defect in the purchased item, we are entitled, at our discretion, to subsequent fulfilment in the form of rectification of the defect or delivery of a new defect-free item. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance. We may refuse subsequent fulfilment if it is only associated with unreasonable or disproportionately high costs. If a request by the customer to remedy a defect proves to be unjustified, we may demand reimbursement of the costs incurred from the customer.

(4) If the subsequent fulfilment fails, the customer shall be entitled - without prejudice to any claims for damages - at his discretion to withdraw from the contract (cancellation of the contract) or to a reduction (reduction of the remuneration).

(5) Claims for defects shall not exist in the event of only insignificant deviations from the agreed quality or the agreed delivery quantity, in the event of only insignificant impairment of usability, in the event of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, unsuitable use, improper use, incorrect assembly, disregard of maintenance and operating instructions or which arise due to special external influences which are not assumed under the contract. A deviation in the delivery quantity of up to 5% shall be deemed insignificant. If improper changes are made by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.

(6) In any case, we may make subsequent fulfilment (rectification or replacement delivery) dependent on whether a reasonable part of the agreed remuneration in relation to the scope and severity of the defect has already been paid.

(7) The customer shall support us in determining and remedying defects and shall inform and consult us comprehensively. He must give us the opportunity to investigate the case of damage.

(8) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of wilful breach of contract, our liability for damages shall be limited to the foreseeable, typically occurring damage.

(9) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage, unless we or our vicarious agents can be accused of intent or gross negligence.

(10) Insofar as the customer is entitled to compensation for damages instead of performance, our liability shall be limited to compensation for foreseeable, typically occurring damages.

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

(12) A change in the burden of proof to the detriment of the customer is not associated with the above provisions.

(13) Unless otherwise agreed, the limitation period for claims for defects for items that have been used for a building in accordance with their normal use and have caused its defectiveness shall be 36 months from the transfer of risk. For other items, the limitation period is 12 months. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected. Otherwise, in cases of injury to life, limb or health, in the event of wilful or grossly negligent breach of duty and in the event of fraudulent concealment of a defect, the statutory limitation period shall apply. The statutory provisions on the commencement of the limitation period and on the suspension, suspension and recommencement of the limitation periods are not affected by these provisions.

(14) Recourse claims of the customer against us in accordance with § 478 BGB (recourse of the entrepreneur) shall only exist insofar as the customer has not made any agreements with his customer that go beyond the statutory claims for defects. The above provisions shall apply accordingly to the scope of our liability for damages.

§8 Industrial property rights; defects of title

(1) We shall be liable to the customer for infringements of industrial property rights in connection with the sale of our products if and to the extent that such industrial property rights are infringed when the goods are used in accordance with the contract, which are valid in the Federal Republic of Germany and are published there at the time of delivery by us, as follows:

a) we shall, at our discretion and at our expense, either obtain a right of use for the product, modify the product in such a way that the property right is not infringed, or replace the product. If this is not possible for us under reasonable conditions, we shall take back the product against reimbursement of the purchase price.

b) The aforementioned obligations shall only apply to us if the customer notifies us immediately in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defence measures and settlement negotiations to us. If the customer ceases to use the product in order to minimise damages or for other important reasons, he is obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.

(2) Claims of the customer are excluded insofar as he is responsible for the infringement of property rights. Claims of the customer shall also be excluded if the infringement of property rights is caused by special specifications of the customer, by an application not foreseeable by us or by the fact that the delivery is modified by the customer or used together with products not supplied by us.

§9 Joint and several liability

(1) Any further liability for damages other than that provided for in §§ 5, 7 and 8 is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB.

(2) The limitation according to paragraph (1) shall also apply if the customer demands compensation for useless expenses instead of a claim for damages.

(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.

§10 Customised products; costs for tools

(1) For the delivery of customised products, we charge pro rata and one-off costs for the manufacture of the corresponding tools.

(2) The tools shall remain our property. We reserve all copyrights and neighbouring rights to the tools without restriction.

(3) If a custom-made product has a defect within the meaning of § 7 (1), the customer shall initially only be entitled to subsequent fulfilment. If the customer demands subsequent fulfilment, we may, at our discretion, remedy the defect or manufacture a new tool. If the subsequent fulfilment fails, the customer shall be entitled - without prejudice to any claims for damages - at his discretion to withdraw from the contract (cancellation of the contract) or to a reduction (reduction of the remuneration). In all other respects, the provisions of §§ 7 to 9 shall apply mutatis mutandis with regard to defects and our liability.

§11 Retention of title

(1) We reserve title to the object of sale until receipt of all payments from the business relationship (including all balance claims from the current account) with the customer. If the value of the items delivered to us as security and subject to retention of title exceeds our total claim by more than 10%, we shall be obliged to release the security (pro rata) at the request of the customer.

(2) In the event of behaviour contrary to the contract on the part of the customer, in particular in the event of default in payment, we shall be entitled to take back the purchased item after setting a reasonable deadline. If we take back the purchased item, this shall constitute a cancellation of the contract. After taking back the purchased item, we shall be authorised to sell it; the proceeds from the sale shall be offset against the customer's liabilities - less reasonable selling costs.

(3) The customer may neither pledge the delivery items nor assign them as security before payment of the purchase price. In the event of seizure, confiscation or other interventions by third parties, the customer must notify us immediately and provide us with all information and documents necessary to protect our rights. Enforcement officers or third parties must be informed of our ownership. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.

(4) The customer shall be entitled to resell the delivery items in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the purchase price agreed between us and the customer, including VAT, which accrue to him from the resale against his customers or third parties, irrespective of whether the delivery items are resold without or after processing. The customer is authorised to collect this claim even after the assignment. Our authorisation to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer duly fulfils his payment obligations and is not in default of payment. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

(5) The processing or transformation of the goods by the customer shall always be carried out on our behalf. If the delivery items are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery items to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the delivery items delivered under reservation of title.

(6) If the delivery items are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivery items to the other mixed items 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, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the resulting sole ownership or co-ownership for us.

(7) The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the connection of the purchased item with a property.

(8) If certain measures are required at the foreign location where the goods are located after collection or delivery in order for the retention of title or the assignment to be effective, the customer must inform us of this immediately and carry out such measures at his own expense.

If, at the place where the goods are located after delivery, it is not possible to grant a reservation of title and / or the otherwise pre-treated rights, the customer shall do everything necessary at his own expense to provide us with the security rights to the delivered goods that are most similar to these rights or to secure our claims in at least an equivalent manner.

§12 Confidentiality and data protection

(1) The contracting parties shall treat as confidential all information or information material that becomes known to them verbally, in writing or in any other way directly or indirectly within the scope of the contractual relationship and that is designated as confidential or is usually considered confidential by its nature for the duration of the contractual relationship and for two years after its termination, shall use it exclusively within the scope of the services covered by this contract and shall not pass it on to third parties or make it accessible to third parties in any other form without the consent of the other party and shall take all reasonable precautions to exclude and avoid access to it by any third parties.

(2) The only exceptions to this confidentiality obligation are information and information materials that were already in the public domain at the time they became known, d.h. are readily accessible to any third party, are lawfully made accessible to a contractual partner after becoming known by a third party who is not subject to any confidentiality obligation towards the other contractual partner in this respect, must be disclosed to an authority or other authorised third party at the latter's request, must necessarily be disclosed to legal or tax advisors of the respective partner for the purpose of providing advice.

(3) We undertake not to violate data protection regulations within the scope of our contractual services. We require our employees to comply with the provisions of data protection law and require these persons to maintain confidentiality. We will coordinate data protection-sensitive activities with the customer's data protection officer.

§13 Place of jurisdiction, place of fulfilment, amendments

(1) The place of jurisdiction is at our respective place of business; however, we are also entitled to sue the customer at the court of his place of residence.

(2) The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.

(3) Unless otherwise stated in the order confirmation, our place of business shall be the place of fulfilment.

(4) Amendments and supplements to this contract must be made in writing.

© Copyright by Americom GmbH All rights reserved
Stand 15.05.2018

Americom GmbH
Breslauer Weg 31,
82538 Geretsried

Register court: Munich
Register number: HRB 223568
Managing director authorised to represent the company: Arno Wienhausen
Tax number: 139/121/52094
Sales tax identification number: DE304715898

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