General Terms and Conditions for Internet sales of Industriehof Scherenbostel Heinrich Rodenbostel GmbH

(Last modified: December 2015)

§ 1 General provisions

(1) All deliveries, services and offers the Seller makes through its web shop at www.industriehof.com shall exclusively be carried out on the basis of these General Terms of Delivery for Internet sales. The latter shall be an integral part of all contracts concluded by the Seller with its contracting parties (hereinafter also referred to as the “Customer”) on the deliveries or services rendered by it. They shall also apply for all future deliveries, services or offers to the Customer, even if they are not subject to another, separate agreement.

(2) General terms and conditions of the Customer or third parties shall not apply, even if the Seller does not expressly object to their application in each individual case. Even if the Seller refers to a letter containing or referring to general terms and conditions of the Customer or a third party, this shall not constitute any agreement to the validity of such terms and conditions.

(3) Seller and Customer agree that both parties shall be deemed as a merchant as defined under § 14 of the German Civil Code (BGB) and that no consumer protection regulations apply.

(4) The Seller shall provide the Customer with these General Terms and Conditions in the contractual language applicable in each case. In cases of doubt, the German version shall be decisive.

§ 2 Conclusion of the contract

(1) The representations made of the goods in the Seller’s web shop shall not constitute a binding offer. Instead, they shall be deemed as a mere invitation to make a binding order.

(2) To be able to order goods through the web shop, the Customer shall first of all register itself. Now, the desired products can be selected and typed in the form provided in the web shop. Then, the Customer submits the completed form to the Seller through the web shop.

(3) Immediately upon receipt of the offer the Seller will send a confirmation to the Customer which, however, does not constitute the acceptance of the offer. The offer shall only be deemed as accepted by the Seller as soon as the latter declares acceptance to the Customer (by e-mail) or the goods have been dispatched. The sales contract with the Customer shall come into effect only upon acceptance by the Seller.

(4) After acceptance of the offer, the Seller shall send an order confirmation to the Customer. This confirmation shall bindingly contain the entire content of the contract agreed upon unless the Customer proves to the Seller within 48 hours from receipt of such confirmation that the latter differs from its order. The burden of proof for this is with the Customer. In this case, the Seller shall confirm to the Customer the deviations in writing or by e-mail; the remaining and correct order shall remain binding.

(5) The Customer’s order, the confirmation of receipt, the order confirmation as well as any other correspondence will be recorded by the Seller by electronic means, with printouts being created if necessary. The Seller recommends to the Customer to do the same.

(6) Any amendments and supplements to the agreements made including these General Terms of Delivery shall be made in writing in order to become valid. Apart from managing directors or holders of a special statutory authority, the Seller’s employees shall not be entitled to make any oral agreement deviating from this. To comply with the required written form, transmission by fax shall be sufficient. For the rest, transmission by means of telecommunications, in particular by e-mail, shall not be sufficient.

(7) The information provided by the Seller concerning the object of the delivery or service (e.g. weight, dimensions, use values, capacity, tolerances and technical data) as well as our representation of such object (e.g. drawings and illustrations) are only approximately applicable unless usability for the contractually intended purpose requires exact conformity. They are no guaranteed quality features but descriptions or designations of the delivery or service. Customary deviations and deviations made due to legal regulations or representing technical improvements, as well as the replacement of components by equivalent parts are admissible as long as they do not impair the usability for the contractually intended purpose.

(8) The Seller reserves the title and copyright to any offers and cost estimates provided by it as well as to the drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids. The Customer may not, without the express consent of the Seller, make these objects (per se or their contents) available to third parties, disclose them or have them used or reproduced, either by itself or by third parties. Upon the Seller’s request, the Customer is required to return all of these objects and, where applicable, destroy any copies made of them if they are no longer needed by the Customer in the regular course of business or if negotiations do not result in the conclusion of a contract.

§ 3 Prices and payment

(1) The prices are applicable for the scope of service and delivery indicated in the order confirmations. Additional or special services will be invoiced separately. Prices are in EURO ex works plus packaging, statutory value-added tax, customs duty in case of export deliveries, as well as fees and public charges.

(2) If, in the individual case, the parties proceed on the assumption of VAT exemption or reverse-charge procedure pursuant to § 13 b of the German Turnover Tax Law (UStG) and at a later point in time, e.g. within the context of a tax audit, it emerges that the Seller is in default with VAT, then the latter shall be entitled to request VAT afterwards from the Customer against the issue of an invoice indicating a separate VAT amount.

(3) If the prices agreed are based upon the Seller’s list prices and delivery is scheduled for not earlier than four months after conclusion of the contract, the list prices of the Seller valid at the time of delivery shall be applicable (in each case less an agreed percentage or fixed discount).

(4) The costs of the packaging and transport of goods shall be borne by the Customer. Such costs will be charged separately.

(5) For orders with a value of up to EUR 30.00, the Seller will charge a small amount surcharge of EUR 5.00.

(6) Invoiced amounts are due within thirty days. The receipt of payment by the Seller shall be decisive for the date of payment. Cheques shall be considered as payment only when honoured. If the Customer fails to pay on the due date, interest will be charged on the outstanding amounts at a rate of 5% p.a. from the due date; the application of higher interest and additional damages in case of default shall remain unaffected and strictly depend on the legal requirements.

(7) In case of payment of the purchase price within 10 days from the invoice date the Seller shall grant the Customer a 2% discount on the invoice amount.

(8) Setting off counterclaims of the Customer or the retention of payments based on such claims shall only be permissible insofar as the counterclaims are undisputed or recognised by declaratory judgment. This shall not apply for counterclaims of the Customer arising from the same contractual relationship.

(9) The Customer shall only be entitled to exercise a right of retention if its counterclaim is based upon the same contractual relationship.

(10) The Seller shall be entitled to make and / or render outstanding deliveries or services against advance payment or provision of a security if, after conclusion of the contract, it learns about circumstances which are of a nature to considerably reduce the creditworthiness of the Customer and by which the payment of the outstanding claims of the Seller by the Customer arising from the respective contractual relationship (including from other individual orders for which the same frame contract applies) is put at risk.

(11) The Customer shall not be entitled to assign claims against the Seller to third parties without the Seller’s written consent.

§ 4 Delivery and delivery time

(1) Delivery shall be on account and risk of the Customer.

(2) Dates and deadlines announced by the Seller are to be considered as approximate unless a fixed deadline or a fixed date has been expressly assured or agreed. For this purpose, a separate written agreement between the Customer and the Seller shall be required. If shipment has been agreed, the deadlines and dates of delivery refer to the point in time of handing over to the forwarder, carrier or third party entrusted with the transport.

(3) The Seller shall be entitled – without prejudice to its rights resulting from the default of the Customer – to demand from the Customer an extension of the deadlines for delivery and service or the postponement of such delivery and service deadlines by the period of time by which the Customer fails to fulfil its contractual obligations with respect to the Seller.

(4) The Seller shall not be liable for the impossibility of delivery or for delays in delivery if these have been caused by force majeure or other events unforeseeable at the time of the conclusion of the contract (e.g. disruptions in operation of any kind, difficulties in the supply of material or energy, transportation delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining the required official approvals, governmental measures or non-delivery or incorrect or late delivery by suppliers) for which the Seller cannot be held responsible. If such events make it difficult or even impossible for the Seller to supply the goods or render the services and if such impairment is not only of a temporary nature, the Seller shall be entitled to withdraw from the contract. In the event of impairments of temporary nature, delivery or services times shall be extended and / or the delivery or service dates shall be postponed by the duration of such impairment plus a reasonable warm-up period. If the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, it shall be entitled to withdraw from the contract by giving the Seller immediate notice in writing.

(5) The Seller shall only be entitled to make partial deliveries if and to the extent

– that such partial delivery is usable for the Customer within the scope of the contractual purpose,

– that the delivery of the remaining goods ordered is guaranteed, and

– the Customer hereby does not incur any significant additional expenditure or cost (unless the Seller agrees to accept such expenditure or costs).

(6) If the Seller is late in delivery or service, or if the supply of goods or services is impossible for whatever reason, then the Seller’s liability shall be limited to damages pursuant to § 8 of these General Terms of Delivery.

§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance

(1) The place of performance for all obligations from the contractual relationship shall be the Seller’s place of business.

(2) The shipping method and packaging shall be subject to the obligatory discretion of the Seller.

(3) The risk shall pass to the Customer at the latest upon handing over of the object of delivery (with the beginning of the loading procedure being decisive) to the forwarder, carrier or any other third party appointed to handle the shipment. This shall also apply in the event of partial deliveries or if the Seller has also been entrusted with other services (e.g. shipping or installation). If shipping or handing over is delayed as a result of any circumstances the Customer is responsible for, risk shall pass to the Customer from that day on which the object of delivery is ready for dispatch and the Seller has notified the Customer thereof.

(4) Storage cost incurred following transfer of risk shall be borne by the Customer. In case of storage by the Seller, storage cost will be 0.25% of the invoiced amount for the objects of delivery for each full week of storage. Assertion and proof of further or lower storage cost is reserved.

(5) Shipment is insured by the Seller upon express request by and at the expense of the Customer only against theft, breakage, transportation, fire and water damage or any other insurable risk.

§ 6 Return of goods

If the Buyer wishes to return goods delivered, doing so shall occur using the return form provided by the Seller and available at www.industriehof.com. The Buyer must specify the reasons for return. For the return of the goods the Seller commissions a partner forwarding company which comes and collects the goods.

If the Buyer wants a different type of return, it must indicate this to the Seller in writing on the return form. If the reason for return is the Buyer’s responsibility, the Buyer must bear the costs of the return. For the rest, the obligation to bear the costs is in accordance with the statutory provisions. Goods must be returned within one month after receipt of the goods delivered. Upon expiry of this term, the return of goods ordered wrongly is excluded. The same shall apply for incomplete, used or damaged goods. In the case of the return of goods ordered wrongly the Seller is entitled to charge storage fees of 15% of the value of the goods plus legal VAT”.

§ 7 Warranty, defects in quality

(1) The warranty period shall be one year from delivery.

(2) The goods delivered must be carefully examined immediately upon delivery to the Customer or any other third party designated by the Customer. The goods are deemed approved if the Seller does not receive a written notice of defect with regard to obvious defects or other defects identifiable during immediate and careful inspection, within seven working days from delivery of the object of delivery or, in any case, within seven working days from the detection of the defect or any earlier point in time at which such defect would have been identifiable for the Customer during normal usage of the object of delivery without closer inspection. Upon request of the Seller the rejected object of delivery must be sent back to the Seller with freight being prepaid. Where complaints are justified, the Seller shall reimburse the cost of the most inexpensive method of dispatch; this shall, however, not apply if higher costs are incurred due to the object of delivery being located at a place other than that of the intended use.

(3) In the event of defects in quality of the goods delivered, the Seller shall be obliged and entitled to choose between subsequent improvement and replacement, with this decision being made within a reasonable period of time. In the event of failure, i.e. subsequent improvement or replacement is impossible or unreasonable, or in case of refusal or inappropriate delay of the subsequent improvement or replacement, the Customer shall be entitled to withdraw from the contract or reduce the purchase price appropriately.

(4) If the Seller is responsible for the defect, the Customer may request compensation in accordance with the provisions set out under § 8.

(5) In the event of defects to components which the Seller cannot remedy due to license laws or other, actual reasons, the Seller will at its choice assert, or assign to the Customer, its warranty claims against the manufacturers and suppliers on the Customer’s account. Warranty claims against the Seller only exist for defects of this kind under the other conditions and in accordance with these General Terms of Delivery if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. in case of bankruptcy. For the duration of the legal dispute, the statute of limitations relating to these warranty claims against the Seller is suspended.

(6) The warranty shall be forfeited if the Customer or any third party modifies the object of delivery without the Seller’s consent, thus making the removal of defects impossible or unreasonably difficult. In any case the Customer is obliged to bear any additional costs for the removal of defects incurred by such modification.

(7) The delivery of used items, which may be agreed with the Customer in individual cases, shall be performed to the exclusion of any warranty for defects in quality.

§ 8 Property rights

(1) Pursuant to this § 7, the Seller guarantees that the object of delivery is free from third-party industrial property rights and copyrights. Each contracting party shall immediately notify the other party in writing in the event that claims are asserted against it due to a violation of such rights.

(2) In the event that the object of delivery is in breach with an industrial property right or copyright of a third party, the Seller will at its choice and cost modify or replace the object being delivered in such a way as to avoid any infringement of third-party rights, the object of delivery, however, continues to fulfil the functions agreed on a contractual basis, or obtain usufructuary rights on behalf of the Customer through the completion of a licensing agreement. If the Seller does not succeed in doing this within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages of the Customer shall be subject to the restrictions set out in § 8 of these General Terms of Delivery.

(3) In the event of infringements caused by products of other manufacturers delivered by the Seller, the Seller will at its own choice assert its claims against such manufacturers and sub-suppliers on the Customer’s account or assign any such claims to the Customer. Claims against the Seller shall only exist in these cases under § 7, if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. in case of bankruptcy.

§ 9 Liability for damages in case of default

(1) The Seller’s liability for damages for whatever legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of the contract, breach of obligations during contract negotiations and in tort, shall be limited in accordance with this § 8 insofar as such liability depends on proof of fault.

(2) The Seller shall not be liable in the event of simple negligence of its bodies, legal representatives, employees, or other vicarious agents as long as there is no breach of an essential contractual obligation. Essential contractual obligations involve the obligation to timely deliver the items ordered free from significant defects as well as duties of consultation, protection and care which are designed to enable the Customer to use goods in accordance with the contract, or such obligations whose purpose is to protect the life and health of the Customer’s personnel or to protect the Customer’s property against significant damage.

(3) Where the Seller is liable for damages in principle under § 8 (2), such liability shall be limited to damages which were foreseeable for the Seller as a possible consequence of a breach of contract when signing the contract or which it should have foreseen when applying due care and attention. Indirect loss and consequential damage resulting from defects to the items delivered shall only be eligible for compensation insofar as such damage can be typically expected when the item delivered is used in accordance with its intended purpose.

(4) In cases of liability for simple negligence, the Seller’s obligation to pay compensation for property damage and resulting further financial losses shall be limited to an amount of EUR 5,000,000.00 per claim for personal injuries and property damage and EUR 250,000.00 per claim for financial loss, even if material contractual obligations have been breached.

(5) The above-mentioned exclusions and limitations of liability shall apply to the same extent in favour of the bodies, legal representatives, employees and other vicarious agents of the Seller.

(6) To the extent the Seller provides technical advice or consulting services und such advice or consultation is not covered by the scope of performance to be provided and contractually agreed upon, such services shall be rendered free of charge and to the exclusion of any liability.

(7) The limitations set out under this § 8 shall not apply to the Seller’s liability due to intentional acts, for guaranteed characteristics, for its liability due to injury to life, body or health, or according to the product liability law.

§ 10 Reservation of title

(1) The goods delivered by the Seller to the Purchaser shall remain the property of the Seller until all secured claims have been paid in full. The goods and any goods taking their place and subject to the reservation of title in accordance with this clause shall hereinafter be referred to as “goods subject to reservation of title”.

(2) The Purchaser shall keep the goods subject to reservation of title in safe custody free of charge for the Seller.

(3) The Purchaser is entitled to process and sell the goods subject to reservation of title in normal business dealings until an event of enforcement (§ 9). Pledging and transfer by way of security shall be inadmissible.

(4) If the goods subject to reservation of title are processed by the Purchaser, it is agreed upon that such processing is performed on behalf and at the expense of the Seller as the manufacturer and that the Seller shall directly acquire the title or – if the processing involves materials provided by more than one owner or the value of the processed goods exceeds the value of the goods subject to reservation of title – co-ownership (ownership in fractional shares) in the newly created goods in the proportion of the value of the goods subject to reservation of title to the value of the newly created goods. In the event that no such acquisition of ownership occurs for the Seller, the Purchaser shall henceforth transfer its future ownership or co-ownership – in the above proportion – in the newly created goods to the Seller as a security. If the goods subject to reservation of title are combined with other items to form a uniform item or are inseparably mixed and if one of the other items can be regarded as the main item, then the Seller hereby transfers, insofar as it is the owner of the main item, co-ownership in the uniform item to the Purchaser on a pro rata basis and in the relation stipulated in sentence 1 above.

(5) If the goods subject to reservation of title are resold, the Purchaser henceforth assigns by way of security the arising claims against the buyer – in case of co-ownership of the Seller in the goods subject to reservation of title on a pro rata basis in accordance with the co-ownership share – to the Seller. The same shall apply to other claims taking the place of the goods subject to reservation of title such as insurance claims or tort claims arising from loss or destruction. The Seller revocably authorises the Purchaser to collect the claims assigned to it on its own behalf. This authorisation to collect the claims assigned may be revoked by the Seller in case of an event of enforcement only.

(6) In the event that the goods subject to reservation of title are accessed by third parties, in particular by way of pledging, the Purchaser shall immediately advise such third party of the Seller’s ownership interest and inform the Seller accordingly in order to enable the latter to enforce its property rights. If such third party is not able to indemnify the Seller for any legal and extra-judicial costs, the Purchaser shall be liable towards the Seller in this respect.

(7) The Seller, upon request at its discretion, shall release the goods subject to reservation of title as well as any items or claims taking their place to the extent that their value exceeds the value of the secured claims by more than 50%.

(8) If the Seller withdraws from the contract due to a behaviour of the Purchaser in breach of contract, in particular delay or default in payment (event of enforcement), it shall be entitled to demand the return of the goods subject to reservation of title.

§ 11 Final provisions

(1) Place of jurisdiction for any dispute arising from the business relationship between the Seller and the Customer is the Customer’s place of business. The exclusive venue for legal actions against the Seller shall be Burgwedel (Amtsgericht [local court]) and Hanover (Landgericht [regional court]). Imperative provisions of the law about exclusive venues shall remain unaffected by this provision.

(2) The relations between the Seller and the Customer shall exclusively be governed by the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

(3) Should the contract or these General Terms of Delivery contain any loophole, those legally valid provisions shall be deemed as agreed upon in lieu of such loopholes, which the parties to the contract would have agreed to according to the economic purposes of the contract and the purpose of these General Terms of Delivery if they had known this loophole.

Note:

The Customer acknowledges that the Seller stores the data arising from the contractual relationship pursuant to § 28 Bundesdatenschutzgesetz [German Federal Data Protection Act] for data processing purposes, and that the Seller reserves the right to transmit such data to third parties (e.g. insurance companies) to the extent necessary for the execution of the contract.

For the rest, the Seller expressly advises the Customer of its Data Privacy Statement, which can be accessed through its website.