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General Terms and Conditions of Sale for Customers
Applicable in national and international business transactions with companies, legal persons under public law and special public funds.
1. Scope of application
1.1. These General Terms and Conditions of Sale (hereinafter referred to as "Terms and Conditions") apply to all business transactions between COMM-TEC GmbH, trading as Exertis Pro AV (hereinafter: "EXERTIS") and the customer, even if they are not expressly referred to in subsequent contracts.
1.2. Terms and conditions of the customer that conflict with, supplement or deviate from these Terms and Conditions shall not become part of the contract, unless EXERTIS has expressly agreed to their application in writing. These Terms and Conditions shall also apply if EXERTIS carries out a delivery to the customer without reservation whilst being aware of the customer’s conflicting or deviating terms and conditions.
1.3. Agreements which supplement or deviate from these Terms and Conditions and which are made between EXERTIS and the customer for the performance of a contract must be set out in writing in the contract. This also applies to the cancellation of this written form requirement.
1.4. Rights to which EXERTIS is entitled by law beyond these Terms and Conditions shall remain unaffected.
2. Conclusion of contract and quality owed
2.1. EXERTIS' offers and cost estimates are subject to change and non-binding, unless they are expressly designated as binding. Illustrations, pictures, drawings, information about weight, measurement, performance and dimensions and other descriptions of the goods that may be contained in the documentation which forms part of the offer shall be approximations only unless they are expressly promised to be binding, in writing or electronically. They shall not constitute an agreement or guarantee of a corresponding quality of the goods. EXERTIS reserves all property rights and copyrights to all offer documents. Such documents shall not be made accessible to third parties.
2.2. Unless and insofar as expressly agreed otherwise in writing, the purpose of the contract pursuant to Section 434 (2) No. 2 of the German Civil Code (BGB) shall be limited to the delivery of goods which comply with the quality owed. The quality of the goods that is owed shall be conclusively agreed in the order and the order confirmation. Unless and insofar as expressly agreed otherwise in writing, the goods shall not have to comply with the objective requirements pursuant to Section 434 (3) of the German Civil Code (BGB). In particular, it shall not be owed that the goods are suitable for normal use and/or that they have a quality which is usual for goods of the same type and which the customer can expect taking into account (i) the type of goods and (ii) the public statements made by EXERTIS or on behalf of EXERTIS or by another person in preceding links in the contractual chain, in particular in advertising or on the label. Moreover, the goods do not have to correspond to the quality of a sample or specimen that EXERTIS provided to the customer prior to the conclusion of the contract.
2.3. An order shall not become binding until it has been confirmed by EXERTIS by means of a written order confirmation. An order confirmation created with the help of automatic devices and therefore not containing a name and signature shall be deemed a written order confirmation.. If EXERTIS does not respond to offers, orders, requests or other declarations of the customer, this shall only be deemed approval if an express written agreement to this effect has been made between EXERTIS and the customer. To the extent that an order confirmation contains obvious errors, misspellings or calculation errors, it shall not be binding upon EXERTIS.
2.4. A prerequisite for the use of the goods is that the customer concludes licence agreements with the manufacturers which allow the customer to use the software used by these manufacturers in the product. To the extent that the conclusion of a licence agreement pursuant to this Clause 2.4, sentence 1 is a prerequisite for the use of the goods, EXERTIS shall not assume any liability. The customer can view the contents of these licence agreements at WWW before concluding the contract. The licence agreement shall be concluded exclusively between the named manufacturer and the Purchaser. In addition to these Terms and Conditions, the special license and other conditions of the respective manufacturer shall apply to the offer and order of software, digital content and goods with included third-party products. The customer independently informs his customers of the end user license agreements ("EULA") of the manufacturers.
3. Cancellation of a binding order by the customer
3.1. Cancellation of a binding order by the customer is generally excluded. This shall apply in particular to special procurements.
3.2. If, in exceptional cases, EXERTIS decides to accept the cancellation of a binding order as a gesture of goodwill, EXERTIS shall be entitled to charge a cancellation fee. This applies in particular to non-stock goods. The purchaser is at liberty to prove that expenses in this amount were not incurred.
4. Prices
4.1. The agreed price shall be the price in euros that is stated in the order confirmation, plus value-added tax. The statutory value-added tax is not included in the price and shall be stated separately in the invoice at the statutory rate which applies on the date of issue of the invoice.
4.2. If, as an exception, the order confirmation does not contain any prices, the price list applicable at the time the respective delivery is made shall apply.
4.3. Unless specifically otherwise agreed, the prices are "ex works" (EXW according to Incoterms® 2020), excluding packaging, transport, insurance and installation. In the event of a sale including shipment, as defined in the second sentence of clause 4.1 below, the customer shall bear the transport costs and, where applicable, the cost of the transport insurance requested by the customer.
4.4. If the period between the order confirmation and the delivery exceeds four months and there is an increase in prices during this period of time, in particular, because of an increase in wages or in the cost of raw materials, a general increase in prices due to inflation, exchange rates or similar circumstances, EXERTIS shall have the right to charge an appropriately increased price. This shall also apply if, upon submission of the offer or upon order confirmation by EXERTIS or upon EXERTIS entering into a framework agreement in which the prices are firmly agreed, the prices of the raw materials used for the goods concerned or other significant cost factors, such as energy, wage, transport or insurance costs or exchange rates, increase significantly (i.e. by at least 10%); in this case, EXERTIS shall have the right to reasonably raise the prices to the extent that they are affected by this increase in costs. EXERTIS shall carry out such price increases taking into account the customer’s legitimate interests, in particular with regard to any commitments made by the latter to continue to supply the goods at a particular price. Upon request, EXERTIS shall furnish the customer with evidence of the factors leading to the increase in prices. If such costs or charges are reduced or eliminated, EXERTIS shall conversely be obliged to reduce the agreed price accordingly.
4.5. EXERTIS shall further have the right to charge an appropriately increased price in case of any request by the customer to change the delivery date(s), the delivery location, quantities, capacity, form, content, style, description or types of goods ordered.
5. Terms of delivery and transfer of risk
5.1. Unless expressly otherwise agreed, delivery shall be “ex works” (EXW, as defined by Incoterms® 2020), 73066 Uhingen, Germany. At the request and expense of the customer, the goods will be shipped to a different destination (hereinafter: “sale including shipment”); in this case, EXERTIS shall have the right to determine the manner of shipment. At the request and expense of the customer, EXERTIS shall take out a transport insurance policy and insure the goods against the risks specified by the customer.
5.2. The written order confirmation of EXERTIS is decisive for the scope of the delivery. Changes to the scope of delivery and to the delivery item itself require the written confirmation of EXERTIS in order to be effective. We reserve the right to make changes to the design and shape of the goods, unless the changes are significant and reasonable for the customer. Partial deliveries are permissible, insofar as this is reasonable for the customer.
5.3. The agreement of delivery periods must be made in writing. Delivery periods are non-binding, unless they are expressly designated as binding.
5.4. The delivery period begins with the dispatch of the order confirmation by EXERTIS, but not before the complete provision of the documents, approvals, releases to be procured by the customer, the clarification of all technical questions and the receipt of an agreed down payment, if any, and the customer has timely and properly provided any further cooperation owed.
5.5. An agreed delivery period shall be deemed met if, by the time the delivery period expires, EXERTIS has made the goods available at the place of delivery or – in the event of a sale including shipment according to the second sentence of clause 4.1 above – has handed the goods over to the person in charge of carrying out the transport or the customer has announced that it will refuse acceptance. The delivery shall be conditional upon EXERTIS being timely and properly supplied by its own suppliers.
5.6. If the non-compliance with the delivery periods is due to force majeure and other obstacles for which EXERTIS is not responsible, such as war, terrorist attacks, or import and export restrictions, including obstacles that affect any of EXERTIS’ suppliers, the agreed delivery periods shall be extended for the duration of such obstacles. This shall also apply if EXERTIS and/or its suppliers are affected by industrial action.
5.7. The risk of accidental loss or destruction or accidental deterioration of the goods shall pass to the customer as soon as EXERTIS has made the goods available at the place of delivery mentioned in the first sentence of clause 4.1 above or – in the event of a sale including shipment, as defined in the second sentence of clause 4.1 above – as soon as the goods have been handed over to the person in charge of carrying out the transport. This shall also apply if partial deliveries are made or if, unlike stated in the second sentence of clause 4.1 above, EXERTIS has agreed to bear the transport costs in any particular case.
5.8. If the customer defaults in its obligation to accept the goods or violates other obligations to cooperate, EXERTIS may claim compensation for the damage incurred, including any additional expenses as a result of such default as follows: an amount equal to 0.5% of the price of the goods supplied per day of default, limited, however, not a maximum of 5% of the net price of the goods supplied in total. The contracting parties are free to assert further claims for damages or prove that the amount of costs actually suffered was smaller. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time when he is in default of acceptance. The goods shall be deemed supplied – in particular, with regard to the warranty periods and the obligation to pay – when the customer starts to default on its obligation to accept the goods.
5.9. Without prejudice to the customer’s claims for defects, if any, the customer shall be obliged to take delivery of the goods supplied even if they contain minor defects. The customer shall further be obliged to take delivery of the goods supplied if the goods made available exceed or fall short of the quantity ordered by up to 5% or if the goods made available are delivered early, provided the delivery does not occur significantly ahead of schedule.
5.10. A delay in delivery shall only entitle the customer to rescind the contract if EXERTIS is responsible for the delay.
6. Terms of payment
6.1. Unless otherwise agreed in writing, payment of the gross purchase price plus possible costs for packaging, freight and insurance must be made in advance 15 days from receipt of the order confirmation by transfer to a bank account of EXERTIS the details of which have been stated in the order confirmation. The payment of invoices for services provided by EXERTIS such as e.g repairs, programming, training, commissioning, etc. must be made within 8 days net from receipt of the invoice by transfer to a bank account of EXERTIS the details of which have been stated in the invoice. The deduction of cash discount requires a written agreement.
6.2. A payment shall be deemed to have been made when EXERTIS can dispose of the amount. If EXERTIS accepts means of payment other than cash, payment shall again be deemed made when the amount owed has been credited unconditionally to the bank account of EXERTIS and/or when EXERTIS is able to dispose of such amount.
6.3. If reminders become necessary after expiry of the payment period, the resulting costs shall be charged to the customer.
6.4. If the time allowed for payment is exceeded, EXERTIS may charge default interest at a rate of 9 percentage points above the base rate of the European Central Bank; the customer shall be free to prove that the interest loss actually suffered remains significantly below this amount. The preceding provisions shall not affect EXERTIS’ right to claim compensation for any further damage suffered.
6.5. If the customer is in default of payment, EXERTIS shall have the right to demand immediate payment of all claims arising from the business relationship which are due and not subject to any defences, even if such claims are not yet due.
6.6. EXERTIS shall have the right to make the performance of outstanding deliveries or services contingent upon the customer paying in advance, or upon the customer providing security if, after conclusion of the contract, circumstances become known which are likely to significantly reduce the creditworthiness of the customer and which jeopardize the payment of open claims of EXERTIS by the customer from the respective contractual relationship. This shall apply accordingly if the customer refuses to pay, or fails to pay, any outstanding claims of EXERTIS and undisputed objections against EXERTIS’ claims or objections that have been established in a judgment which cannot be appealed against do not exist.
6.7. Counterclaims of the customer shall only entitle him to set-off and to assert a right of retention if they have been legally established or are undisputed. The customer can only assert a right of retention if it is based on the same contractual relationship.
7. Retention of title
7.1. The goods delivered by EXERTIS remain the property of EXERTIS until they have been paid for in full.
7.2. Furthermore, the goods supplied shall remain EXERTIS’ property until all claims arising from the business relationship between the customer and EXERTIS have been paid in full.
7.3. The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the goods at his own expense against fire, water and theft. The customer hereby assigns to EXERTIS all claims for compensation arising from this insurance. EXERTIS hereby accepts the assignment. If an assignment is not permitted, the customer hereby irrevocably instructs his insurer to make payments, if any, only to the EXERTIS. Further claims of EXERTIS remain unaffected. Upon request, the customer shall provide EXERTIS with proof of the conclusion of the insurance contract.
7.4. If the goods which are subject to this retention-of-title clause are combined with other items that do not belong to EXERTIS such that they form a single item, EXERTIS shall acquire proportionate co-ownership of this single item, according to the ratio of the value (final amount invoiced, including value-added tax) of the goods which are subject to this retention-of-title clause and the value of the other items at the time they are combined. In the event that the goods which are subject to this retention-of-title clause are combined with other items in such a manner that the customer’s item is to be considered the principal item, the customer hereby transfers to EXERTIS proportionate co-ownership of this item. EXERTIS accepts this transfer. The provisions of this clause 6.4 shall apply accordingly if the goods which are subject to this retention-of-title clause are mixed or processed with other items.
7.5. The customer shall have the right, subject to revocation, to sell the goods which are subject to this retention-of-title clause in the ordinary course of business. The customer shall have no right to pledge the goods which are subject to this retention-of-title clause, to transfer them by way of security, or to make any other dispositions which jeopardise the ownership of EXERTIS. In the event of attachments or other encroachments by third parties, the customer must notify EXERTIS without undue delay in writing and provide all the information needed, advise the third party of EXERTIS’ property rights, and assist with any measures taken by EXERTIS to protect the goods which are subject to this retention-of-title clause.
7.6. The customer hereby assigns to EXERTIS its claims arising from the resale of the goods which are subject to this retention-of-title clause, along with all ancillary rights, in an amount equal to the amount invoiced, including value-added tax. EXERTIS hereby accepts this assignment. If the goods which are subject to this retention-of-title clause are sold with other goods not supplied by EXERTIS, the claim arising from resale shall be assigned proportionately, according to the ratio of the value of the goods which are subject to this retention-of-title clause (final amount invoiced, including value-added tax) and the value of the other goods sold. If assigning such claims is not allowed, the customer hereby irrevocably instructs the third-party debtor to make payments, if any, only to EXERTIS.
7.7. The customer shall be authorised, subject to revocation, to collect the claims which have been assigned to EXERTIS in its own name as a trustee acting on behalf of EXERTIS. This shall not affect EXERTIS’ right to collect such claims itself. However, EXERTIS shall not assert such claims itself or revoke the authority to collect claims as long as the customer properly performs its payment obligations. If, however, the customer breaches the contract – in particular, if the customer defaults on a payment – the customer must disclose the assigned claims and the respective debtors to EXERTIS, inform the respective debtors of the assignment, and provide EXERTIS with all the records and all the information needed by EXERTIS to assert the claims.
7.8. EXERTIS may revoke the customer’s right to resell the goods and the authority to collect claims if the customer fails to properly perform its payment obligations to EXERTIS, defaults on one or more payments or stops payment, or if a petition is filed to institute insolvency proceedings against the customer’s assets.
7.9. At the request of the customer, EXERTIS shall be obliged to release the security provided to the extent that the realisable value of such security exceeds EXERTIS’ claims arising from its business relationship with the customer by more than 10%, upon deduction of the mark-downs customary in the banking business. EXERTIS may choose which security interests it wishes to release.
7.10. In the event that goods are supplied to destinations with other legal systems where the retention-of-title provisions set out in this clause 6 are not legally valid, the customer hereby grants EXERTIS an equivalent security interest. If the creation of such a security interest requires further measures, the customer shall do whatever is necessary to grant EXERTIS such security interest without undue delay. The customer shall assist with all measures that are required for, and conducive to, the validity and enforceability of such security interests.
8. Warranty
8.1. Liability for material defects and defects of title shall be based exclusively on the quality owed as conclusively agreed in the order and order confirmation.
8.2. The customer's rights arising from defects shall be contingent upon the customer performing his statutory inspection and notification obligations (§§ 377, 381 HGB), in particular upon the customer inspecting all goods supplied without undue delay upon receipt and giving EXERTIS without undue delay written notice of any obvious defects and of defects that could be identified during such inspection. Hidden defects must be reported by the customer to EXERTIS in writing without undue delay after their discovery. In order for such notice to be deemed given without undue delay within the meaning of the first and second sentence above, it must be given within 8 working days; this deadline is met if EXERTIS receives the notice before the expiry of the aforesaid period. If the customer fails to properly inspect and/or report defects, EXERTIS's liability for the defect is excluded. The customer must describe the defects in writing when notifying EXERTIS.
8.3. Claims for subsequent performance are excluded in the event of minor, technically unavoidable deviations in quality, colour, width, weight, equipment or design.
8.4. In the event of defects in the goods, EXERTIS is entitled, at its own discretion, to subsequent performance by remedying the defect or delivering defect-free goods.
8.5. The statutory right of withdrawal of the customer is excluded if he is unable to return the received service and this is not based on the fact that the return is impossible according to the nature of the received service, is the fault of EXERTIS or the defect has only become apparent during the processing or transformation of the goods. The right of withdrawal is further excluded if EXERTIS is not responsible for the defect and if EXERTIS has to pay compensation for the value instead of the return warranty.
8.6. If the object of the contract is not located at the place of delivery, the customer shall bear all additional costs incurred by EXERTIS in remedying defects, unless the transfer to another location corresponds to the contractual use.
8.7. Rights arising from defects shall not exist
‒ in the event of an insignificant deviation from the agreed quality or an insignificant impairment of usability, where agreed (including, without limitation, deviations in structure and colour from the sample or from catalogue illustrations and/or deviations from previous deliveries to the extent that such deviations are due to the nature of the materials used and are customary in trade);
‒ in the event of natural wear and tear (typical wearing parts being, in particular, the products offered by EXERTIS as replacement parts; upon request, EXERTIS will provide the customer with a list of replacement parts);
‒ in the event of defects resulting from improper handling (for example, other than as described in the operating manual), improper storage or maintenance, or excessive strain or use after the risk has passed;
‒ in the event of defects resulting from force majeure, from extraordinary external impacts that are not intended according to the contract, or from the goods being used in a manner which does not correspond to their contractually intended or customary use.
8.8. Furthermore, rights arising from defects in quality shall not exist
‒ if the goods supplied are altered by a third party, or through the installation of parts from another manufacturer, unless the alteration did not cause the defect or the third party was expressly instructed by EXERTIS;
‒ if the customer had the defect removed by technically inexperienced third parties.
8.9. EXERTIS does not accept liability for defects which arise as a result of the customer insisting on a manner of processing or a selection of materials that deviates from EXERTIS’ specifications.
8.10. Warranty claims may be asserted by the customer only. The customer shall have no right to assign its warranty claims against EXERTIS unless EXERTIS has expressly approved such assignment in writing.
8.11. The provisions of this clause 7 shall apply accordingly to defects in title which do not consist in an infringement of third-party intellectual property rights.
9. Liability and limitation
9.1. EXERTIS contractual liability for damages as part of its warranty obligations shall, in any case, be conditional upon fault (wilful misconduct or negligence), even if
no-fault liability is provided for by law (in particular, by the United Nations Convention on Contracts for the International Sale of Goods (CISG) within the context of international business transactions). This shall not affect the mandatory statutory liability for product defects (in particular, under the German Product Liability Act).
9.2. EXERTIS shall be liable without limitation – on whatever legal grounds – in the event of a breach of guarantee or death, bodily injury or damage to health. The same shall apply to wilful misconduct and gross negligence, mandatory statutory liability for product defects (in particular, under the German Product Liability Act), and liability if defects were concealed with fraudulent intent.
9.3. In cases of slight negligence, EXERTIS shall – subject to clause 8.2 above – only be liable if material obligations are violated which result from the nature of the contract and are of particular importance for achieving the purpose of the contract. If such obligations are violated, and also in the event of default or if performance is impossible, EXERTIS’ liability shall be limited to the damage that can typically be expected with this contract.
9.4. In the event of failure to meet a delivery date, EXERTIS’ liability for damage suffered by the customer as a result of the delay shall – subject to clause 8.2 above – be limited to a maximum amount equal to 5% of the agreed net price. The contracting parties may assert further claims for damages or prove that the amount of damage actually suffered was smaller.
9.5. The limitation period for the customer's claims for defects is 12 months and shall commence upon the delivery of the goods. The above limitation period shall also apply to tort claims which are based on a defect of the goods. The limitation period shall not start anew as a result of a repair or replacement delivery. In the cases referred to in clause 8.2 above, the statutory limitation rules shall apply instead. The unlimited liability of EXERTIS for damages from the breach of a guarantee or from injury to life, body or health, for intent and gross negligence as well as for product defects remains unaffected. Also unaffected are the recourse rights of the customer according to §§ 478, 479 BGB when selling newly manufactured goods to an end user.
9.6. The suspension of the expiration of the statute of limitations for claims under a right of recourse set forth in Section 445b (2) sentence 1 of the German Civil Code (BGB) shall end no later than five years after the date on which EXERTIS delivered the item to the customer. In the event of a final sale of the goods to a consumer, EXERTIS may only invoke this provision if EXERTIS simultaneously grants the customer equivalent compensation.
9.7. The sale of used goods shall be made to the exclusion of any claims for material defects. The statutory claims of the customer in the cases pursuant to Clauses 8.2 and 8.3 shall remain unaffected.
9.8. If, prior to the conclusion of a contract, EXERTIS has breached a pre-contractual obligation through slight negligence and as a result, the customer has incurred a claim for damages, the customer waives its right to assert such claim for damages upon conclusion of the contract.
10. Withdrawal
10.1. In the event of breach of contract by the customer, in particular in the event of default in payment, EXERTIS shall be entitled, without prejudice to its other contractual and statutory rights, to withdraw from the contract after expiry of a reasonable grace period set for performance.
10.2. EXERTIS is entitled to withdraw from the contract without setting a grace period if the customer ceases to make payments or applies for the opening of insolvency proceedings or comparable proceedings for the settlement of debts over his assets.
10.3. After notice of withdrawal from the contract has been given, the customer must grant EXERTIS or EXERTIS’ agents without undue delay access to the goods which are subject to the retention-of-title clause and surrender these goods. For the purposes of the settlement of EXERTIS’ due claims against the customer, EXERTIS may sell the goods which are subject to the retention-of-title clause otherwise after a timely announcement to this effect. Upon deduction of reasonable selling costs, the proceeds from sale shall be credited against the customer’s liabilities.
10.4. Statutory rights and claims are not restricted by the provisions contained in this Section 9.
11. Return
11.1. If the customer has ordered the goods in a legally binding manner and the goods do not contain any defects, an exchange of the goods shall not be possible, as a general rule. Invoice number and invoice date must be indicated.
11.2. If EXERTIS decides in exceptional cases to take the goods back from the customer as a gesture of goodwill, EXERTIS may issue a credit note, depending on the condition of the goods (new, originally packaged, used), a discount of at least 5% of the sales value, but at least € 40, – and the applicable VAT will be deducted. The customer remains free to prove that depreciation or expenses have not arisen in this amount.
11.3. EXERTIS does not deliver goods on trial, unless expressly agreed otherwise.
12. Packaging Ordinance
12.1. Pursuant to Section 15 (1) Sentence 1 of the Packaging Act, manufacturers and distributors of transport packaging (No. 1), sales and secondary packaging that does not typically accumulate as waste at private end consumers after use (No. 2), sales and secondary packaging for which system participation is not possible due to system incompatibility pursuant to Section 7 (5) of the Packaging Act (No. 3), sales packaging containing hazardous substances (No. 4) or reusable packaging (No. 5) shall be obliged to take back, free of charge, used, empty packaging of the same type, shape and size as that which they put into circulation at the place of actual transfer or in the immediate vicinity thereof in order to reuse or recycle it. By way of derogation from the foregoing, the customer and EXERTIS agree, pursuant to Section 15 (1) sentence 4 of the German Packaging Act, that the customer shall take back any packaging pursuant to Section 15 (1) Sentence 1 Numbers 1 to 4 of the German Packaging Act at its place of business or at any other place to be determined by it and within its sphere of responsibility and shall inform its respective principals or customers about the return option and the purpose of the return. The costs for the return as well as the proper disposal or recycling shall be borne by the customer. The return of packaging within the meaning of Section 15 (1) Sentence 1 Numbers 1 to 4 of the Packaging Act at the place of business of EXERTIS shall be excluded.
12.2. Unless otherwise agreed in accordance with Section 15 (1) sentence 4 of the German Packaging Act (individual agreement) in deviation from Clause 11.1, EXERTIS shall, in order to comply with the take-back obligations pursuant to Section 15 of the German Packaging Act, ensure the take-back as well as the proper and correct recycling of the packaging delivered by EXERTIS from the customer. The return shall be effected by collection of the packaging by a third party to be commissioned by EXERTIS upon request by the customer. The costs incurred for collection and recycling are to be borne by the customer. If the packaging delivered by EXERTIS is not returned in accordance with this provision, the customer shall be responsible for the proper and correct recycling of the packaging at its own expense.
12.3. Clause 11.1 does not apply to reusable packaging within the meaning of Section 15 (1) No. 5 in conjunction with Section 3 (3) of the Packaging Act. This applies in particular to standardized Euro pallets and skeleton containers.
12.4. To the extent that the goods have been handed over to the customer on Euro pallets or lattice boxes (load carriers) (reusable packaging within the meaning of Section 3 (3) of the German Packaging Act), the customer shall surrender to EXERTIS load carriers in the same number as well as the same type and quality at the place of the original delivery.
13. Export control
13.1. All goods and technical know-how are delivered by EXERTIS in compliance with the currently valid AWG/AWV/EG Dual-Use Regulation as well as the US export regulations and are intended for use and to remain in the country of delivery agreed with the customer. The customer may not export goods without obtaining all necessary licences thereunder and will not resell such goods to a purchaser knowing (or being given reasonable grounds to suspect) that the purchaser intends to export such goods without first obtaining either such licences or a copy of such licences obtained by the purchaser.
13.2. The customer informs himself independently about the currently valid regulations and regulations (Federal Office of Economics and Export Control, 65760 Eschborn or Bureau of Industry and Security, Washington, DC 20230). Regardless of whether the customer indicates the final destination of the goods, it is the responsibility of the customer to obtain the necessary permits from the respective competent foreign trade authorities before the customer exports the goods. EXERTIS has no obligation to provide information.
13.3. Any further delivery of the goods by the customer to third parties, with and without the knowledge of EXERTIS, requires compliance with the legal regulations and the transfer of the relevant documents. The customer is fully liable for non-compliance with the relevant provisions.
14. Confidentiality
14.1. The customer shall be obliged to treat all information about EXERTIS that becomes available to the customer and is designated as confidential or can be identified as a trade or business secret due to other circumstances as confidential for an unlimited period of time, and the customer must not record, disclose or exploit any such information.
14.2. The customer shall enter into adequate contractual agreements with the employees and agents working for it to ensure that they, too, refrain for an unlimited period of time from any exploitation, disclosure or unauthorised recording of such trade and business secrets for their own purposes.
14.3. Drawings, models, patterns, samples or similar items may only be used for the purpose of performing the contract and must not be made available to, or otherwise accessible by, unauthorised third parties. Such items may only be reproduced where this is necessary for operational reasons, within the limits defined by copyright law.
15. Final provisions
15.1. The legal relationship between the Customer and EXERTIS shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Movement of Goods (CISG).
15.2. The exclusive place of jurisdiction for all claims arising from the business relationship against merchants and legal entities under public law is the registered office of COMM-TEC GMBH. EXERTIS is also entitled to bring an action at the registered office of the customer as well as at any other permissible place of jurisdiction.
15.3. In the case of cross-border services, the registered office of EXERTIS is the exclusive place of jurisdiction for all disputes arising from the contractual relationship (Article 23 EuGVVO). However, EXERTIS reserves the right to sue the customer at its general place of jurisdiction or to appeal to any other court competent under the EuGVVO.
15.4. The place of performance for all services provided by the customer and EXERTIS is the registered office of COMM-TEC GMBH.
15.5. The transfer of rights and obligations of the customer to third parties is only possible with the written consent of EXERTIS.
COMM-TEC GmbH, November 2022
1. Scope of application
1.1. These General Terms and Conditions of Sale (hereinafter referred to as "Terms and Conditions") apply to all business transactions between COMM-TEC GmbH, trading as Exertis Pro AV (hereinafter: "EXERTIS") and the customer, even if they are not expressly referred to in subsequent contracts.
1.2. Terms and conditions of the customer that conflict with, supplement or deviate from these Terms and Conditions shall not become part of the contract, unless EXERTIS has expressly agreed to their application in writing. These Terms and Conditions shall also apply if EXERTIS carries out a delivery to the customer without reservation whilst being aware of the customer’s conflicting or deviating terms and conditions.
1.3. Agreements which supplement or deviate from these Terms and Conditions and which are made between EXERTIS and the customer for the performance of a contract must be set out in writing in the contract. This also applies to the cancellation of this written form requirement.
1.4. Rights to which EXERTIS is entitled by law beyond these Terms and Conditions shall remain unaffected.
2. Conclusion of contract and quality owed
2.1. EXERTIS' offers and cost estimates are subject to change and non-binding, unless they are expressly designated as binding. Illustrations, pictures, drawings, information about weight, measurement, performance and dimensions and other descriptions of the goods that may be contained in the documentation which forms part of the offer shall be approximations only unless they are expressly promised to be binding, in writing or electronically. They shall not constitute an agreement or guarantee of a corresponding quality of the goods. EXERTIS reserves all property rights and copyrights to all offer documents. Such documents shall not be made accessible to third parties.
2.2. Unless and insofar as expressly agreed otherwise in writing, the purpose of the contract pursuant to Section 434 (2) No. 2 of the German Civil Code (BGB) shall be limited to the delivery of goods which comply with the quality owed. The quality of the goods that is owed shall be conclusively agreed in the order and the order confirmation. Unless and insofar as expressly agreed otherwise in writing, the goods shall not have to comply with the objective requirements pursuant to Section 434 (3) of the German Civil Code (BGB). In particular, it shall not be owed that the goods are suitable for normal use and/or that they have a quality which is usual for goods of the same type and which the customer can expect taking into account (i) the type of goods and (ii) the public statements made by EXERTIS or on behalf of EXERTIS or by another person in preceding links in the contractual chain, in particular in advertising or on the label. Moreover, the goods do not have to correspond to the quality of a sample or specimen that EXERTIS provided to the customer prior to the conclusion of the contract.
2.3. An order shall not become binding until it has been confirmed by EXERTIS by means of a written order confirmation. An order confirmation created with the help of automatic devices and therefore not containing a name and signature shall be deemed a written order confirmation.. If EXERTIS does not respond to offers, orders, requests or other declarations of the customer, this shall only be deemed approval if an express written agreement to this effect has been made between EXERTIS and the customer. To the extent that an order confirmation contains obvious errors, misspellings or calculation errors, it shall not be binding upon EXERTIS.
2.4. A prerequisite for the use of the goods is that the customer concludes licence agreements with the manufacturers which allow the customer to use the software used by these manufacturers in the product. To the extent that the conclusion of a licence agreement pursuant to this Clause 2.4, sentence 1 is a prerequisite for the use of the goods, EXERTIS shall not assume any liability. The customer can view the contents of these licence agreements at WWW before concluding the contract. The licence agreement shall be concluded exclusively between the named manufacturer and the Purchaser. In addition to these Terms and Conditions, the special license and other conditions of the respective manufacturer shall apply to the offer and order of software, digital content and goods with included third-party products. The customer independently informs his customers of the end user license agreements ("EULA") of the manufacturers.
3. Cancellation of a binding order by the customer
3.1. Cancellation of a binding order by the customer is generally excluded. This shall apply in particular to special procurements.
3.2. If, in exceptional cases, EXERTIS decides to accept the cancellation of a binding order as a gesture of goodwill, EXERTIS shall be entitled to charge a cancellation fee. This applies in particular to non-stock goods. The purchaser is at liberty to prove that expenses in this amount were not incurred.
4. Prices
4.1. The agreed price shall be the price in euros that is stated in the order confirmation, plus value-added tax. The statutory value-added tax is not included in the price and shall be stated separately in the invoice at the statutory rate which applies on the date of issue of the invoice.
4.2. If, as an exception, the order confirmation does not contain any prices, the price list applicable at the time the respective delivery is made shall apply.
4.3. Unless specifically otherwise agreed, the prices are "ex works" (EXW according to Incoterms® 2020), excluding packaging, transport, insurance and installation. In the event of a sale including shipment, as defined in the second sentence of clause 4.1 below, the customer shall bear the transport costs and, where applicable, the cost of the transport insurance requested by the customer.
4.4. If the period between the order confirmation and the delivery exceeds four months and there is an increase in prices during this period of time, in particular, because of an increase in wages or in the cost of raw materials, a general increase in prices due to inflation, exchange rates or similar circumstances, EXERTIS shall have the right to charge an appropriately increased price. This shall also apply if, upon submission of the offer or upon order confirmation by EXERTIS or upon EXERTIS entering into a framework agreement in which the prices are firmly agreed, the prices of the raw materials used for the goods concerned or other significant cost factors, such as energy, wage, transport or insurance costs or exchange rates, increase significantly (i.e. by at least 10%); in this case, EXERTIS shall have the right to reasonably raise the prices to the extent that they are affected by this increase in costs. EXERTIS shall carry out such price increases taking into account the customer’s legitimate interests, in particular with regard to any commitments made by the latter to continue to supply the goods at a particular price. Upon request, EXERTIS shall furnish the customer with evidence of the factors leading to the increase in prices. If such costs or charges are reduced or eliminated, EXERTIS shall conversely be obliged to reduce the agreed price accordingly.
4.5. EXERTIS shall further have the right to charge an appropriately increased price in case of any request by the customer to change the delivery date(s), the delivery location, quantities, capacity, form, content, style, description or types of goods ordered.
5. Terms of delivery and transfer of risk
5.1. Unless expressly otherwise agreed, delivery shall be “ex works” (EXW, as defined by Incoterms® 2020), 73066 Uhingen, Germany. At the request and expense of the customer, the goods will be shipped to a different destination (hereinafter: “sale including shipment”); in this case, EXERTIS shall have the right to determine the manner of shipment. At the request and expense of the customer, EXERTIS shall take out a transport insurance policy and insure the goods against the risks specified by the customer.
5.2. The written order confirmation of EXERTIS is decisive for the scope of the delivery. Changes to the scope of delivery and to the delivery item itself require the written confirmation of EXERTIS in order to be effective. We reserve the right to make changes to the design and shape of the goods, unless the changes are significant and reasonable for the customer. Partial deliveries are permissible, insofar as this is reasonable for the customer.
5.3. The agreement of delivery periods must be made in writing. Delivery periods are non-binding, unless they are expressly designated as binding.
5.4. The delivery period begins with the dispatch of the order confirmation by EXERTIS, but not before the complete provision of the documents, approvals, releases to be procured by the customer, the clarification of all technical questions and the receipt of an agreed down payment, if any, and the customer has timely and properly provided any further cooperation owed.
5.5. An agreed delivery period shall be deemed met if, by the time the delivery period expires, EXERTIS has made the goods available at the place of delivery or – in the event of a sale including shipment according to the second sentence of clause 4.1 above – has handed the goods over to the person in charge of carrying out the transport or the customer has announced that it will refuse acceptance. The delivery shall be conditional upon EXERTIS being timely and properly supplied by its own suppliers.
5.6. If the non-compliance with the delivery periods is due to force majeure and other obstacles for which EXERTIS is not responsible, such as war, terrorist attacks, or import and export restrictions, including obstacles that affect any of EXERTIS’ suppliers, the agreed delivery periods shall be extended for the duration of such obstacles. This shall also apply if EXERTIS and/or its suppliers are affected by industrial action.
5.7. The risk of accidental loss or destruction or accidental deterioration of the goods shall pass to the customer as soon as EXERTIS has made the goods available at the place of delivery mentioned in the first sentence of clause 4.1 above or – in the event of a sale including shipment, as defined in the second sentence of clause 4.1 above – as soon as the goods have been handed over to the person in charge of carrying out the transport. This shall also apply if partial deliveries are made or if, unlike stated in the second sentence of clause 4.1 above, EXERTIS has agreed to bear the transport costs in any particular case.
5.8. If the customer defaults in its obligation to accept the goods or violates other obligations to cooperate, EXERTIS may claim compensation for the damage incurred, including any additional expenses as a result of such default as follows: an amount equal to 0.5% of the price of the goods supplied per day of default, limited, however, not a maximum of 5% of the net price of the goods supplied in total. The contracting parties are free to assert further claims for damages or prove that the amount of costs actually suffered was smaller. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time when he is in default of acceptance. The goods shall be deemed supplied – in particular, with regard to the warranty periods and the obligation to pay – when the customer starts to default on its obligation to accept the goods.
5.9. Without prejudice to the customer’s claims for defects, if any, the customer shall be obliged to take delivery of the goods supplied even if they contain minor defects. The customer shall further be obliged to take delivery of the goods supplied if the goods made available exceed or fall short of the quantity ordered by up to 5% or if the goods made available are delivered early, provided the delivery does not occur significantly ahead of schedule.
5.10. A delay in delivery shall only entitle the customer to rescind the contract if EXERTIS is responsible for the delay.
6. Terms of payment
6.1. Unless otherwise agreed in writing, payment of the gross purchase price plus possible costs for packaging, freight and insurance must be made in advance 15 days from receipt of the order confirmation by transfer to a bank account of EXERTIS the details of which have been stated in the order confirmation. The payment of invoices for services provided by EXERTIS such as e.g repairs, programming, training, commissioning, etc. must be made within 8 days net from receipt of the invoice by transfer to a bank account of EXERTIS the details of which have been stated in the invoice. The deduction of cash discount requires a written agreement.
6.2. A payment shall be deemed to have been made when EXERTIS can dispose of the amount. If EXERTIS accepts means of payment other than cash, payment shall again be deemed made when the amount owed has been credited unconditionally to the bank account of EXERTIS and/or when EXERTIS is able to dispose of such amount.
6.3. If reminders become necessary after expiry of the payment period, the resulting costs shall be charged to the customer.
6.4. If the time allowed for payment is exceeded, EXERTIS may charge default interest at a rate of 9 percentage points above the base rate of the European Central Bank; the customer shall be free to prove that the interest loss actually suffered remains significantly below this amount. The preceding provisions shall not affect EXERTIS’ right to claim compensation for any further damage suffered.
6.5. If the customer is in default of payment, EXERTIS shall have the right to demand immediate payment of all claims arising from the business relationship which are due and not subject to any defences, even if such claims are not yet due.
6.6. EXERTIS shall have the right to make the performance of outstanding deliveries or services contingent upon the customer paying in advance, or upon the customer providing security if, after conclusion of the contract, circumstances become known which are likely to significantly reduce the creditworthiness of the customer and which jeopardize the payment of open claims of EXERTIS by the customer from the respective contractual relationship. This shall apply accordingly if the customer refuses to pay, or fails to pay, any outstanding claims of EXERTIS and undisputed objections against EXERTIS’ claims or objections that have been established in a judgment which cannot be appealed against do not exist.
6.7. Counterclaims of the customer shall only entitle him to set-off and to assert a right of retention if they have been legally established or are undisputed. The customer can only assert a right of retention if it is based on the same contractual relationship.
7. Retention of title
7.1. The goods delivered by EXERTIS remain the property of EXERTIS until they have been paid for in full.
7.2. Furthermore, the goods supplied shall remain EXERTIS’ property until all claims arising from the business relationship between the customer and EXERTIS have been paid in full.
7.3. The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the goods at his own expense against fire, water and theft. The customer hereby assigns to EXERTIS all claims for compensation arising from this insurance. EXERTIS hereby accepts the assignment. If an assignment is not permitted, the customer hereby irrevocably instructs his insurer to make payments, if any, only to the EXERTIS. Further claims of EXERTIS remain unaffected. Upon request, the customer shall provide EXERTIS with proof of the conclusion of the insurance contract.
7.4. If the goods which are subject to this retention-of-title clause are combined with other items that do not belong to EXERTIS such that they form a single item, EXERTIS shall acquire proportionate co-ownership of this single item, according to the ratio of the value (final amount invoiced, including value-added tax) of the goods which are subject to this retention-of-title clause and the value of the other items at the time they are combined. In the event that the goods which are subject to this retention-of-title clause are combined with other items in such a manner that the customer’s item is to be considered the principal item, the customer hereby transfers to EXERTIS proportionate co-ownership of this item. EXERTIS accepts this transfer. The provisions of this clause 6.4 shall apply accordingly if the goods which are subject to this retention-of-title clause are mixed or processed with other items.
7.5. The customer shall have the right, subject to revocation, to sell the goods which are subject to this retention-of-title clause in the ordinary course of business. The customer shall have no right to pledge the goods which are subject to this retention-of-title clause, to transfer them by way of security, or to make any other dispositions which jeopardise the ownership of EXERTIS. In the event of attachments or other encroachments by third parties, the customer must notify EXERTIS without undue delay in writing and provide all the information needed, advise the third party of EXERTIS’ property rights, and assist with any measures taken by EXERTIS to protect the goods which are subject to this retention-of-title clause.
7.6. The customer hereby assigns to EXERTIS its claims arising from the resale of the goods which are subject to this retention-of-title clause, along with all ancillary rights, in an amount equal to the amount invoiced, including value-added tax. EXERTIS hereby accepts this assignment. If the goods which are subject to this retention-of-title clause are sold with other goods not supplied by EXERTIS, the claim arising from resale shall be assigned proportionately, according to the ratio of the value of the goods which are subject to this retention-of-title clause (final amount invoiced, including value-added tax) and the value of the other goods sold. If assigning such claims is not allowed, the customer hereby irrevocably instructs the third-party debtor to make payments, if any, only to EXERTIS.
7.7. The customer shall be authorised, subject to revocation, to collect the claims which have been assigned to EXERTIS in its own name as a trustee acting on behalf of EXERTIS. This shall not affect EXERTIS’ right to collect such claims itself. However, EXERTIS shall not assert such claims itself or revoke the authority to collect claims as long as the customer properly performs its payment obligations. If, however, the customer breaches the contract – in particular, if the customer defaults on a payment – the customer must disclose the assigned claims and the respective debtors to EXERTIS, inform the respective debtors of the assignment, and provide EXERTIS with all the records and all the information needed by EXERTIS to assert the claims.
7.8. EXERTIS may revoke the customer’s right to resell the goods and the authority to collect claims if the customer fails to properly perform its payment obligations to EXERTIS, defaults on one or more payments or stops payment, or if a petition is filed to institute insolvency proceedings against the customer’s assets.
7.9. At the request of the customer, EXERTIS shall be obliged to release the security provided to the extent that the realisable value of such security exceeds EXERTIS’ claims arising from its business relationship with the customer by more than 10%, upon deduction of the mark-downs customary in the banking business. EXERTIS may choose which security interests it wishes to release.
7.10. In the event that goods are supplied to destinations with other legal systems where the retention-of-title provisions set out in this clause 6 are not legally valid, the customer hereby grants EXERTIS an equivalent security interest. If the creation of such a security interest requires further measures, the customer shall do whatever is necessary to grant EXERTIS such security interest without undue delay. The customer shall assist with all measures that are required for, and conducive to, the validity and enforceability of such security interests.
8. Warranty
8.1. Liability for material defects and defects of title shall be based exclusively on the quality owed as conclusively agreed in the order and order confirmation.
8.2. The customer's rights arising from defects shall be contingent upon the customer performing his statutory inspection and notification obligations (§§ 377, 381 HGB), in particular upon the customer inspecting all goods supplied without undue delay upon receipt and giving EXERTIS without undue delay written notice of any obvious defects and of defects that could be identified during such inspection. Hidden defects must be reported by the customer to EXERTIS in writing without undue delay after their discovery. In order for such notice to be deemed given without undue delay within the meaning of the first and second sentence above, it must be given within 8 working days; this deadline is met if EXERTIS receives the notice before the expiry of the aforesaid period. If the customer fails to properly inspect and/or report defects, EXERTIS's liability for the defect is excluded. The customer must describe the defects in writing when notifying EXERTIS.
8.3. Claims for subsequent performance are excluded in the event of minor, technically unavoidable deviations in quality, colour, width, weight, equipment or design.
8.4. In the event of defects in the goods, EXERTIS is entitled, at its own discretion, to subsequent performance by remedying the defect or delivering defect-free goods.
8.5. The statutory right of withdrawal of the customer is excluded if he is unable to return the received service and this is not based on the fact that the return is impossible according to the nature of the received service, is the fault of EXERTIS or the defect has only become apparent during the processing or transformation of the goods. The right of withdrawal is further excluded if EXERTIS is not responsible for the defect and if EXERTIS has to pay compensation for the value instead of the return warranty.
8.6. If the object of the contract is not located at the place of delivery, the customer shall bear all additional costs incurred by EXERTIS in remedying defects, unless the transfer to another location corresponds to the contractual use.
8.7. Rights arising from defects shall not exist
‒ in the event of an insignificant deviation from the agreed quality or an insignificant impairment of usability, where agreed (including, without limitation, deviations in structure and colour from the sample or from catalogue illustrations and/or deviations from previous deliveries to the extent that such deviations are due to the nature of the materials used and are customary in trade);
‒ in the event of natural wear and tear (typical wearing parts being, in particular, the products offered by EXERTIS as replacement parts; upon request, EXERTIS will provide the customer with a list of replacement parts);
‒ in the event of defects resulting from improper handling (for example, other than as described in the operating manual), improper storage or maintenance, or excessive strain or use after the risk has passed;
‒ in the event of defects resulting from force majeure, from extraordinary external impacts that are not intended according to the contract, or from the goods being used in a manner which does not correspond to their contractually intended or customary use.
8.8. Furthermore, rights arising from defects in quality shall not exist
‒ if the goods supplied are altered by a third party, or through the installation of parts from another manufacturer, unless the alteration did not cause the defect or the third party was expressly instructed by EXERTIS;
‒ if the customer had the defect removed by technically inexperienced third parties.
8.9. EXERTIS does not accept liability for defects which arise as a result of the customer insisting on a manner of processing or a selection of materials that deviates from EXERTIS’ specifications.
8.10. Warranty claims may be asserted by the customer only. The customer shall have no right to assign its warranty claims against EXERTIS unless EXERTIS has expressly approved such assignment in writing.
8.11. The provisions of this clause 7 shall apply accordingly to defects in title which do not consist in an infringement of third-party intellectual property rights.
9. Liability and limitation
9.1. EXERTIS contractual liability for damages as part of its warranty obligations shall, in any case, be conditional upon fault (wilful misconduct or negligence), even if
no-fault liability is provided for by law (in particular, by the United Nations Convention on Contracts for the International Sale of Goods (CISG) within the context of international business transactions). This shall not affect the mandatory statutory liability for product defects (in particular, under the German Product Liability Act).
9.2. EXERTIS shall be liable without limitation – on whatever legal grounds – in the event of a breach of guarantee or death, bodily injury or damage to health. The same shall apply to wilful misconduct and gross negligence, mandatory statutory liability for product defects (in particular, under the German Product Liability Act), and liability if defects were concealed with fraudulent intent.
9.3. In cases of slight negligence, EXERTIS shall – subject to clause 8.2 above – only be liable if material obligations are violated which result from the nature of the contract and are of particular importance for achieving the purpose of the contract. If such obligations are violated, and also in the event of default or if performance is impossible, EXERTIS’ liability shall be limited to the damage that can typically be expected with this contract.
9.4. In the event of failure to meet a delivery date, EXERTIS’ liability for damage suffered by the customer as a result of the delay shall – subject to clause 8.2 above – be limited to a maximum amount equal to 5% of the agreed net price. The contracting parties may assert further claims for damages or prove that the amount of damage actually suffered was smaller.
9.5. The limitation period for the customer's claims for defects is 12 months and shall commence upon the delivery of the goods. The above limitation period shall also apply to tort claims which are based on a defect of the goods. The limitation period shall not start anew as a result of a repair or replacement delivery. In the cases referred to in clause 8.2 above, the statutory limitation rules shall apply instead. The unlimited liability of EXERTIS for damages from the breach of a guarantee or from injury to life, body or health, for intent and gross negligence as well as for product defects remains unaffected. Also unaffected are the recourse rights of the customer according to §§ 478, 479 BGB when selling newly manufactured goods to an end user.
9.6. The suspension of the expiration of the statute of limitations for claims under a right of recourse set forth in Section 445b (2) sentence 1 of the German Civil Code (BGB) shall end no later than five years after the date on which EXERTIS delivered the item to the customer. In the event of a final sale of the goods to a consumer, EXERTIS may only invoke this provision if EXERTIS simultaneously grants the customer equivalent compensation.
9.7. The sale of used goods shall be made to the exclusion of any claims for material defects. The statutory claims of the customer in the cases pursuant to Clauses 8.2 and 8.3 shall remain unaffected.
9.8. If, prior to the conclusion of a contract, EXERTIS has breached a pre-contractual obligation through slight negligence and as a result, the customer has incurred a claim for damages, the customer waives its right to assert such claim for damages upon conclusion of the contract.
10. Withdrawal
10.1. In the event of breach of contract by the customer, in particular in the event of default in payment, EXERTIS shall be entitled, without prejudice to its other contractual and statutory rights, to withdraw from the contract after expiry of a reasonable grace period set for performance.
10.2. EXERTIS is entitled to withdraw from the contract without setting a grace period if the customer ceases to make payments or applies for the opening of insolvency proceedings or comparable proceedings for the settlement of debts over his assets.
10.3. After notice of withdrawal from the contract has been given, the customer must grant EXERTIS or EXERTIS’ agents without undue delay access to the goods which are subject to the retention-of-title clause and surrender these goods. For the purposes of the settlement of EXERTIS’ due claims against the customer, EXERTIS may sell the goods which are subject to the retention-of-title clause otherwise after a timely announcement to this effect. Upon deduction of reasonable selling costs, the proceeds from sale shall be credited against the customer’s liabilities.
10.4. Statutory rights and claims are not restricted by the provisions contained in this Section 9.
11. Return
11.1. If the customer has ordered the goods in a legally binding manner and the goods do not contain any defects, an exchange of the goods shall not be possible, as a general rule. Invoice number and invoice date must be indicated.
11.2. If EXERTIS decides in exceptional cases to take the goods back from the customer as a gesture of goodwill, EXERTIS may issue a credit note, depending on the condition of the goods (new, originally packaged, used), a discount of at least 5% of the sales value, but at least € 40, – and the applicable VAT will be deducted. The customer remains free to prove that depreciation or expenses have not arisen in this amount.
11.3. EXERTIS does not deliver goods on trial, unless expressly agreed otherwise.
12. Packaging Ordinance
12.1. Pursuant to Section 15 (1) Sentence 1 of the Packaging Act, manufacturers and distributors of transport packaging (No. 1), sales and secondary packaging that does not typically accumulate as waste at private end consumers after use (No. 2), sales and secondary packaging for which system participation is not possible due to system incompatibility pursuant to Section 7 (5) of the Packaging Act (No. 3), sales packaging containing hazardous substances (No. 4) or reusable packaging (No. 5) shall be obliged to take back, free of charge, used, empty packaging of the same type, shape and size as that which they put into circulation at the place of actual transfer or in the immediate vicinity thereof in order to reuse or recycle it. By way of derogation from the foregoing, the customer and EXERTIS agree, pursuant to Section 15 (1) sentence 4 of the German Packaging Act, that the customer shall take back any packaging pursuant to Section 15 (1) Sentence 1 Numbers 1 to 4 of the German Packaging Act at its place of business or at any other place to be determined by it and within its sphere of responsibility and shall inform its respective principals or customers about the return option and the purpose of the return. The costs for the return as well as the proper disposal or recycling shall be borne by the customer. The return of packaging within the meaning of Section 15 (1) Sentence 1 Numbers 1 to 4 of the Packaging Act at the place of business of EXERTIS shall be excluded.
12.2. Unless otherwise agreed in accordance with Section 15 (1) sentence 4 of the German Packaging Act (individual agreement) in deviation from Clause 11.1, EXERTIS shall, in order to comply with the take-back obligations pursuant to Section 15 of the German Packaging Act, ensure the take-back as well as the proper and correct recycling of the packaging delivered by EXERTIS from the customer. The return shall be effected by collection of the packaging by a third party to be commissioned by EXERTIS upon request by the customer. The costs incurred for collection and recycling are to be borne by the customer. If the packaging delivered by EXERTIS is not returned in accordance with this provision, the customer shall be responsible for the proper and correct recycling of the packaging at its own expense.
12.3. Clause 11.1 does not apply to reusable packaging within the meaning of Section 15 (1) No. 5 in conjunction with Section 3 (3) of the Packaging Act. This applies in particular to standardized Euro pallets and skeleton containers.
12.4. To the extent that the goods have been handed over to the customer on Euro pallets or lattice boxes (load carriers) (reusable packaging within the meaning of Section 3 (3) of the German Packaging Act), the customer shall surrender to EXERTIS load carriers in the same number as well as the same type and quality at the place of the original delivery.
13. Export control
13.1. All goods and technical know-how are delivered by EXERTIS in compliance with the currently valid AWG/AWV/EG Dual-Use Regulation as well as the US export regulations and are intended for use and to remain in the country of delivery agreed with the customer. The customer may not export goods without obtaining all necessary licences thereunder and will not resell such goods to a purchaser knowing (or being given reasonable grounds to suspect) that the purchaser intends to export such goods without first obtaining either such licences or a copy of such licences obtained by the purchaser.
13.2. The customer informs himself independently about the currently valid regulations and regulations (Federal Office of Economics and Export Control, 65760 Eschborn or Bureau of Industry and Security, Washington, DC 20230). Regardless of whether the customer indicates the final destination of the goods, it is the responsibility of the customer to obtain the necessary permits from the respective competent foreign trade authorities before the customer exports the goods. EXERTIS has no obligation to provide information.
13.3. Any further delivery of the goods by the customer to third parties, with and without the knowledge of EXERTIS, requires compliance with the legal regulations and the transfer of the relevant documents. The customer is fully liable for non-compliance with the relevant provisions.
14. Confidentiality
14.1. The customer shall be obliged to treat all information about EXERTIS that becomes available to the customer and is designated as confidential or can be identified as a trade or business secret due to other circumstances as confidential for an unlimited period of time, and the customer must not record, disclose or exploit any such information.
14.2. The customer shall enter into adequate contractual agreements with the employees and agents working for it to ensure that they, too, refrain for an unlimited period of time from any exploitation, disclosure or unauthorised recording of such trade and business secrets for their own purposes.
14.3. Drawings, models, patterns, samples or similar items may only be used for the purpose of performing the contract and must not be made available to, or otherwise accessible by, unauthorised third parties. Such items may only be reproduced where this is necessary for operational reasons, within the limits defined by copyright law.
15. Final provisions
15.1. The legal relationship between the Customer and EXERTIS shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Movement of Goods (CISG).
15.2. The exclusive place of jurisdiction for all claims arising from the business relationship against merchants and legal entities under public law is the registered office of COMM-TEC GMBH. EXERTIS is also entitled to bring an action at the registered office of the customer as well as at any other permissible place of jurisdiction.
15.3. In the case of cross-border services, the registered office of EXERTIS is the exclusive place of jurisdiction for all disputes arising from the contractual relationship (Article 23 EuGVVO). However, EXERTIS reserves the right to sue the customer at its general place of jurisdiction or to appeal to any other court competent under the EuGVVO.
15.4. The place of performance for all services provided by the customer and EXERTIS is the registered office of COMM-TEC GMBH.
15.5. The transfer of rights and obligations of the customer to third parties is only possible with the written consent of EXERTIS.
COMM-TEC GmbH, November 2022
General Terms and Conditions of Sale for Customers
Applicable in national and international business transactions with companies, legal persons under public law and special public funds.
1. Scope of application
1.1. These General Terms and Conditions of Sale (hereinafter referred to as "Terms and Conditions") apply to all business transactions between COMM-TEC GmbH, trading as Exertis Pro AV (hereinafter: "EXERTIS") and the customer, even if they are not expressly referred to in subsequent contracts.
1.2. Terms and conditions of the customer that conflict with, supplement or deviate from these Terms and Conditions shall not become part of the contract, unless EXERTIS has expressly agreed to their application in writing. These Terms and Conditions shall also apply if EXERTIS carries out a delivery to the customer without reservation whilst being aware of the customer’s conflicting or deviating terms and conditions.
1.3. Agreements which supplement or deviate from these Terms and Conditions and which are made between EXERTIS and the customer for the performance of a contract must be set out in writing in the contract. This also applies to the cancellation of this written form requirement.
1.4. Rights to which EXERTIS is entitled by law beyond these Terms and Conditions shall remain unaffected.
2. Conclusion of contract and quality owed
2.1. EXERTIS' offers and cost estimates are subject to change and non-binding, unless they are expressly designated as binding. Illustrations, pictures, drawings, information about weight, measurement, performance and dimensions and other descriptions of the goods that may be contained in the documentation which forms part of the offer shall be approximations only unless they are expressly promised to be binding, in writing or electronically. They shall not constitute an agreement or guarantee of a corresponding quality of the goods. EXERTIS reserves all property rights and copyrights to all offer documents. Such documents shall not be made accessible to third parties.
2.2. Unless and insofar as expressly agreed otherwise in writing, the purpose of the contract pursuant to Section 434 (2) No. 2 of the German Civil Code (BGB) shall be limited to the delivery of goods which comply with the quality owed. The quality of the goods that is owed shall be conclusively agreed in the order and the order confirmation. Unless and insofar as expressly agreed otherwise in writing, the goods shall not have to comply with the objective requirements pursuant to Section 434 (3) of the German Civil Code (BGB). In particular, it shall not be owed that the goods are suitable for normal use and/or that they have a quality which is usual for goods of the same type and which the customer can expect taking into account (i) the type of goods and (ii) the public statements made by EXERTIS or on behalf of EXERTIS or by another person in preceding links in the contractual chain, in particular in advertising or on the label. Moreover, the goods do not have to correspond to the quality of a sample or specimen that EXERTIS provided to the customer prior to the conclusion of the contract.
2.3. An order shall not become binding until it has been confirmed by EXERTIS by means of a written order confirmation. An order confirmation created with the help of automatic devices and therefore not containing a name and signature shall be deemed a written order confirmation.. If EXERTIS does not respond to offers, orders, requests or other declarations of the customer, this shall only be deemed approval if an express written agreement to this effect has been made between EXERTIS and the customer. To the extent that an order confirmation contains obvious errors, misspellings or calculation errors, it shall not be binding upon EXERTIS.
2.4. A prerequisite for the use of the goods is that the customer concludes licence agreements with the manufacturers which allow the customer to use the software used by these manufacturers in the product. To the extent that the conclusion of a licence agreement pursuant to this Clause 2.4, sentence 1 is a prerequisite for the use of the goods, EXERTIS shall not assume any liability. The customer can view the contents of these licence agreements at WWW before concluding the contract. The licence agreement shall be concluded exclusively between the named manufacturer and the Purchaser. In addition to these Terms and Conditions, the special license and other conditions of the respective manufacturer shall apply to the offer and order of software, digital content and goods with included third-party products. The customer independently informs his customers of the end user license agreements ("EULA") of the manufacturers.
3. Cancellation of a binding order by the customer
3.1. Cancellation of a binding order by the customer is generally excluded. This shall apply in particular to special procurements.
3.2. If, in exceptional cases, EXERTIS decides to accept the cancellation of a binding order as a gesture of goodwill, EXERTIS shall be entitled to charge a cancellation fee. This applies in particular to non-stock goods. The purchaser is at liberty to prove that expenses in this amount were not incurred.
4. Prices
4.1. The agreed price shall be the price in euros that is stated in the order confirmation, plus value-added tax. The statutory value-added tax is not included in the price and shall be stated separately in the invoice at the statutory rate which applies on the date of issue of the invoice.
4.2. If, as an exception, the order confirmation does not contain any prices, the price list applicable at the time the respective delivery is made shall apply.
4.3. Unless specifically otherwise agreed, the prices are "ex works" (EXW according to Incoterms® 2020), excluding packaging, transport, insurance and installation. In the event of a sale including shipment, as defined in the second sentence of clause 4.1 below, the customer shall bear the transport costs and, where applicable, the cost of the transport insurance requested by the customer.
4.4. If the period between the order confirmation and the delivery exceeds four months and there is an increase in prices during this period of time, in particular, because of an increase in wages or in the cost of raw materials, a general increase in prices due to inflation, exchange rates or similar circumstances, EXERTIS shall have the right to charge an appropriately increased price. This shall also apply if, upon submission of the offer or upon order confirmation by EXERTIS or upon EXERTIS entering into a framework agreement in which the prices are firmly agreed, the prices of the raw materials used for the goods concerned or other significant cost factors, such as energy, wage, transport or insurance costs or exchange rates, increase significantly (i.e. by at least 10%); in this case, EXERTIS shall have the right to reasonably raise the prices to the extent that they are affected by this increase in costs. EXERTIS shall carry out such price increases taking into account the customer’s legitimate interests, in particular with regard to any commitments made by the latter to continue to supply the goods at a particular price. Upon request, EXERTIS shall furnish the customer with evidence of the factors leading to the increase in prices. If such costs or charges are reduced or eliminated, EXERTIS shall conversely be obliged to reduce the agreed price accordingly.
4.5. EXERTIS shall further have the right to charge an appropriately increased price in case of any request by the customer to change the delivery date(s), the delivery location, quantities, capacity, form, content, style, description or types of goods ordered.
5. Terms of delivery and transfer of risk
5.1. Unless expressly otherwise agreed, delivery shall be “ex works” (EXW, as defined by Incoterms® 2020), 73066 Uhingen, Germany. At the request and expense of the customer, the goods will be shipped to a different destination (hereinafter: “sale including shipment”); in this case, EXERTIS shall have the right to determine the manner of shipment. At the request and expense of the customer, EXERTIS shall take out a transport insurance policy and insure the goods against the risks specified by the customer.
5.2. The written order confirmation of EXERTIS is decisive for the scope of the delivery. Changes to the scope of delivery and to the delivery item itself require the written confirmation of EXERTIS in order to be effective. We reserve the right to make changes to the design and shape of the goods, unless the changes are significant and reasonable for the customer. Partial deliveries are permissible, insofar as this is reasonable for the customer.
5.3. The agreement of delivery periods must be made in writing. Delivery periods are non-binding, unless they are expressly designated as binding.
5.4. The delivery period begins with the dispatch of the order confirmation by EXERTIS, but not before the complete provision of the documents, approvals, releases to be procured by the customer, the clarification of all technical questions and the receipt of an agreed down payment, if any, and the customer has timely and properly provided any further cooperation owed.
5.5. An agreed delivery period shall be deemed met if, by the time the delivery period expires, EXERTIS has made the goods available at the place of delivery or – in the event of a sale including shipment according to the second sentence of clause 4.1 above – has handed the goods over to the person in charge of carrying out the transport or the customer has announced that it will refuse acceptance. The delivery shall be conditional upon EXERTIS being timely and properly supplied by its own suppliers.
5.6. If the non-compliance with the delivery periods is due to force majeure and other obstacles for which EXERTIS is not responsible, such as war, terrorist attacks, or import and export restrictions, including obstacles that affect any of EXERTIS’ suppliers, the agreed delivery periods shall be extended for the duration of such obstacles. This shall also apply if EXERTIS and/or its suppliers are affected by industrial action.
5.7. The risk of accidental loss or destruction or accidental deterioration of the goods shall pass to the customer as soon as EXERTIS has made the goods available at the place of delivery mentioned in the first sentence of clause 4.1 above or – in the event of a sale including shipment, as defined in the second sentence of clause 4.1 above – as soon as the goods have been handed over to the person in charge of carrying out the transport. This shall also apply if partial deliveries are made or if, unlike stated in the second sentence of clause 4.1 above, EXERTIS has agreed to bear the transport costs in any particular case.
5.8. If the customer defaults in its obligation to accept the goods or violates other obligations to cooperate, EXERTIS may claim compensation for the damage incurred, including any additional expenses as a result of such default as follows: an amount equal to 0.5% of the price of the goods supplied per day of default, limited, however, not a maximum of 5% of the net price of the goods supplied in total. The contracting parties are free to assert further claims for damages or prove that the amount of costs actually suffered was smaller. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time when he is in default of acceptance. The goods shall be deemed supplied – in particular, with regard to the warranty periods and the obligation to pay – when the customer starts to default on its obligation to accept the goods.
5.9. Without prejudice to the customer’s claims for defects, if any, the customer shall be obliged to take delivery of the goods supplied even if they contain minor defects. The customer shall further be obliged to take delivery of the goods supplied if the goods made available exceed or fall short of the quantity ordered by up to 5% or if the goods made available are delivered early, provided the delivery does not occur significantly ahead of schedule.
5.10. A delay in delivery shall only entitle the customer to rescind the contract if EXERTIS is responsible for the delay.
6. Terms of payment
6.1. Unless otherwise agreed in writing, payment of the gross purchase price plus possible costs for packaging, freight and insurance must be made in advance 15 days from receipt of the order confirmation by transfer to a bank account of EXERTIS the details of which have been stated in the order confirmation. The payment of invoices for services provided by EXERTIS such as e.g repairs, programming, training, commissioning, etc. must be made within 8 days net from receipt of the invoice by transfer to a bank account of EXERTIS the details of which have been stated in the invoice. The deduction of cash discount requires a written agreement.
6.2. A payment shall be deemed to have been made when EXERTIS can dispose of the amount. If EXERTIS accepts means of payment other than cash, payment shall again be deemed made when the amount owed has been credited unconditionally to the bank account of EXERTIS and/or when EXERTIS is able to dispose of such amount.
6.3. If reminders become necessary after expiry of the payment period, the resulting costs shall be charged to the customer.
6.4. If the time allowed for payment is exceeded, EXERTIS may charge default interest at a rate of 9 percentage points above the base rate of the European Central Bank; the customer shall be free to prove that the interest loss actually suffered remains significantly below this amount. The preceding provisions shall not affect EXERTIS’ right to claim compensation for any further damage suffered.
6.5. If the customer is in default of payment, EXERTIS shall have the right to demand immediate payment of all claims arising from the business relationship which are due and not subject to any defences, even if such claims are not yet due.
6.6. EXERTIS shall have the right to make the performance of outstanding deliveries or services contingent upon the customer paying in advance, or upon the customer providing security if, after conclusion of the contract, circumstances become known which are likely to significantly reduce the creditworthiness of the customer and which jeopardize the payment of open claims of EXERTIS by the customer from the respective contractual relationship. This shall apply accordingly if the customer refuses to pay, or fails to pay, any outstanding claims of EXERTIS and undisputed objections against EXERTIS’ claims or objections that have been established in a judgment which cannot be appealed against do not exist.
6.7. Counterclaims of the customer shall only entitle him to set-off and to assert a right of retention if they have been legally established or are undisputed. The customer can only assert a right of retention if it is based on the same contractual relationship.
7. Retention of title
7.1. The goods delivered by EXERTIS remain the property of EXERTIS until they have been paid for in full.
7.2. Furthermore, the goods supplied shall remain EXERTIS’ property until all claims arising from the business relationship between the customer and EXERTIS have been paid in full.
7.3. The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the goods at his own expense against fire, water and theft. The customer hereby assigns to EXERTIS all claims for compensation arising from this insurance. EXERTIS hereby accepts the assignment. If an assignment is not permitted, the customer hereby irrevocably instructs his insurer to make payments, if any, only to the EXERTIS. Further claims of EXERTIS remain unaffected. Upon request, the customer shall provide EXERTIS with proof of the conclusion of the insurance contract.
7.4. If the goods which are subject to this retention-of-title clause are combined with other items that do not belong to EXERTIS such that they form a single item, EXERTIS shall acquire proportionate co-ownership of this single item, according to the ratio of the value (final amount invoiced, including value-added tax) of the goods which are subject to this retention-of-title clause and the value of the other items at the time they are combined. In the event that the goods which are subject to this retention-of-title clause are combined with other items in such a manner that the customer’s item is to be considered the principal item, the customer hereby transfers to EXERTIS proportionate co-ownership of this item. EXERTIS accepts this transfer. The provisions of this clause 6.4 shall apply accordingly if the goods which are subject to this retention-of-title clause are mixed or processed with other items.
7.5. The customer shall have the right, subject to revocation, to sell the goods which are subject to this retention-of-title clause in the ordinary course of business. The customer shall have no right to pledge the goods which are subject to this retention-of-title clause, to transfer them by way of security, or to make any other dispositions which jeopardise the ownership of EXERTIS. In the event of attachments or other encroachments by third parties, the customer must notify EXERTIS without undue delay in writing and provide all the information needed, advise the third party of EXERTIS’ property rights, and assist with any measures taken by EXERTIS to protect the goods which are subject to this retention-of-title clause.
7.6. The customer hereby assigns to EXERTIS its claims arising from the resale of the goods which are subject to this retention-of-title clause, along with all ancillary rights, in an amount equal to the amount invoiced, including value-added tax. EXERTIS hereby accepts this assignment. If the goods which are subject to this retention-of-title clause are sold with other goods not supplied by EXERTIS, the claim arising from resale shall be assigned proportionately, according to the ratio of the value of the goods which are subject to this retention-of-title clause (final amount invoiced, including value-added tax) and the value of the other goods sold. If assigning such claims is not allowed, the customer hereby irrevocably instructs the third-party debtor to make payments, if any, only to EXERTIS.
7.7. The customer shall be authorised, subject to revocation, to collect the claims which have been assigned to EXERTIS in its own name as a trustee acting on behalf of EXERTIS. This shall not affect EXERTIS’ right to collect such claims itself. However, EXERTIS shall not assert such claims itself or revoke the authority to collect claims as long as the customer properly performs its payment obligations. If, however, the customer breaches the contract – in particular, if the customer defaults on a payment – the customer must disclose the assigned claims and the respective debtors to EXERTIS, inform the respective debtors of the assignment, and provide EXERTIS with all the records and all the information needed by EXERTIS to assert the claims.
7.8. EXERTIS may revoke the customer’s right to resell the goods and the authority to collect claims if the customer fails to properly perform its payment obligations to EXERTIS, defaults on one or more payments or stops payment, or if a petition is filed to institute insolvency proceedings against the customer’s assets.
7.9. At the request of the customer, EXERTIS shall be obliged to release the security provided to the extent that the realisable value of such security exceeds EXERTIS’ claims arising from its business relationship with the customer by more than 10%, upon deduction of the mark-downs customary in the banking business. EXERTIS may choose which security interests it wishes to release.
7.10. In the event that goods are supplied to destinations with other legal systems where the retention-of-title provisions set out in this clause 6 are not legally valid, the customer hereby grants EXERTIS an equivalent security interest. If the creation of such a security interest requires further measures, the customer shall do whatever is necessary to grant EXERTIS such security interest without undue delay. The customer shall assist with all measures that are required for, and conducive to, the validity and enforceability of such security interests.
8. Warranty
8.1. Liability for material defects and defects of title shall be based exclusively on the quality owed as conclusively agreed in the order and order confirmation.
8.2. The customer's rights arising from defects shall be contingent upon the customer performing his statutory inspection and notification obligations (§§ 377, 381 HGB), in particular upon the customer inspecting all goods supplied without undue delay upon receipt and giving EXERTIS without undue delay written notice of any obvious defects and of defects that could be identified during such inspection. Hidden defects must be reported by the customer to EXERTIS in writing without undue delay after their discovery. In order for such notice to be deemed given without undue delay within the meaning of the first and second sentence above, it must be given within 8 working days; this deadline is met if EXERTIS receives the notice before the expiry of the aforesaid period. If the customer fails to properly inspect and/or report defects, EXERTIS's liability for the defect is excluded. The customer must describe the defects in writing when notifying EXERTIS.
8.3. Claims for subsequent performance are excluded in the event of minor, technically unavoidable deviations in quality, colour, width, weight, equipment or design.
8.4. In the event of defects in the goods, EXERTIS is entitled, at its own discretion, to subsequent performance by remedying the defect or delivering defect-free goods.
8.5. The statutory right of withdrawal of the customer is excluded if he is unable to return the received service and this is not based on the fact that the return is impossible according to the nature of the received service, is the fault of EXERTIS or the defect has only become apparent during the processing or transformation of the goods. The right of withdrawal is further excluded if EXERTIS is not responsible for the defect and if EXERTIS has to pay compensation for the value instead of the return warranty.
8.6. If the object of the contract is not located at the place of delivery, the customer shall bear all additional costs incurred by EXERTIS in remedying defects, unless the transfer to another location corresponds to the contractual use.
8.7. Rights arising from defects shall not exist
‒ in the event of an insignificant deviation from the agreed quality or an insignificant impairment of usability, where agreed (including, without limitation, deviations in structure and colour from the sample or from catalogue illustrations and/or deviations from previous deliveries to the extent that such deviations are due to the nature of the materials used and are customary in trade);
‒ in the event of natural wear and tear (typical wearing parts being, in particular, the products offered by EXERTIS as replacement parts; upon request, EXERTIS will provide the customer with a list of replacement parts);
‒ in the event of defects resulting from improper handling (for example, other than as described in the operating manual), improper storage or maintenance, or excessive strain or use after the risk has passed;
‒ in the event of defects resulting from force majeure, from extraordinary external impacts that are not intended according to the contract, or from the goods being used in a manner which does not correspond to their contractually intended or customary use.
8.8. Furthermore, rights arising from defects in quality shall not exist
‒ if the goods supplied are altered by a third party, or through the installation of parts from another manufacturer, unless the alteration did not cause the defect or the third party was expressly instructed by EXERTIS;
‒ if the customer had the defect removed by technically inexperienced third parties.
8.9. EXERTIS does not accept liability for defects which arise as a result of the customer insisting on a manner of processing or a selection of materials that deviates from EXERTIS’ specifications.
8.10. Warranty claims may be asserted by the customer only. The customer shall have no right to assign its warranty claims against EXERTIS unless EXERTIS has expressly approved such assignment in writing.
8.11. The provisions of this clause 7 shall apply accordingly to defects in title which do not consist in an infringement of third-party intellectual property rights.
9. Liability and limitation
9.1. EXERTIS contractual liability for damages as part of its warranty obligations shall, in any case, be conditional upon fault (wilful misconduct or negligence), even if
no-fault liability is provided for by law (in particular, by the United Nations Convention on Contracts for the International Sale of Goods (CISG) within the context of international business transactions). This shall not affect the mandatory statutory liability for product defects (in particular, under the German Product Liability Act).
9.2. EXERTIS shall be liable without limitation – on whatever legal grounds – in the event of a breach of guarantee or death, bodily injury or damage to health. The same shall apply to wilful misconduct and gross negligence, mandatory statutory liability for product defects (in particular, under the German Product Liability Act), and liability if defects were concealed with fraudulent intent.
9.3. In cases of slight negligence, EXERTIS shall – subject to clause 8.2 above – only be liable if material obligations are violated which result from the nature of the contract and are of particular importance for achieving the purpose of the contract. If such obligations are violated, and also in the event of default or if performance is impossible, EXERTIS’ liability shall be limited to the damage that can typically be expected with this contract.
9.4. In the event of failure to meet a delivery date, EXERTIS’ liability for damage suffered by the customer as a result of the delay shall – subject to clause 8.2 above – be limited to a maximum amount equal to 5% of the agreed net price. The contracting parties may assert further claims for damages or prove that the amount of damage actually suffered was smaller.
9.5. The limitation period for the customer's claims for defects is 12 months and shall commence upon the delivery of the goods. The above limitation period shall also apply to tort claims which are based on a defect of the goods. The limitation period shall not start anew as a result of a repair or replacement delivery. In the cases referred to in clause 8.2 above, the statutory limitation rules shall apply instead. The unlimited liability of EXERTIS for damages from the breach of a guarantee or from injury to life, body or health, for intent and gross negligence as well as for product defects remains unaffected. Also unaffected are the recourse rights of the customer according to §§ 478, 479 BGB when selling newly manufactured goods to an end user.
9.6. The suspension of the expiration of the statute of limitations for claims under a right of recourse set forth in Section 445b (2) sentence 1 of the German Civil Code (BGB) shall end no later than five years after the date on which EXERTIS delivered the item to the customer. In the event of a final sale of the goods to a consumer, EXERTIS may only invoke this provision if EXERTIS simultaneously grants the customer equivalent compensation.
9.7. The sale of used goods shall be made to the exclusion of any claims for material defects. The statutory claims of the customer in the cases pursuant to Clauses 8.2 and 8.3 shall remain unaffected.
9.8. If, prior to the conclusion of a contract, EXERTIS has breached a pre-contractual obligation through slight negligence and as a result, the customer has incurred a claim for damages, the customer waives its right to assert such claim for damages upon conclusion of the contract.
10. Withdrawal
10.1. In the event of breach of contract by the customer, in particular in the event of default in payment, EXERTIS shall be entitled, without prejudice to its other contractual and statutory rights, to withdraw from the contract after expiry of a reasonable grace period set for performance.
10.2. EXERTIS is entitled to withdraw from the contract without setting a grace period if the customer ceases to make payments or applies for the opening of insolvency proceedings or comparable proceedings for the settlement of debts over his assets.
10.3. After notice of withdrawal from the contract has been given, the customer must grant EXERTIS or EXERTIS’ agents without undue delay access to the goods which are subject to the retention-of-title clause and surrender these goods. For the purposes of the settlement of EXERTIS’ due claims against the customer, EXERTIS may sell the goods which are subject to the retention-of-title clause otherwise after a timely announcement to this effect. Upon deduction of reasonable selling costs, the proceeds from sale shall be credited against the customer’s liabilities.
10.4. Statutory rights and claims are not restricted by the provisions contained in this Section 9.
11. Return
11.1. If the customer has ordered the goods in a legally binding manner and the goods do not contain any defects, an exchange of the goods shall not be possible, as a general rule. Invoice number and invoice date must be indicated.
11.2. If EXERTIS decides in exceptional cases to take the goods back from the customer as a gesture of goodwill, EXERTIS may issue a credit note, depending on the condition of the goods (new, originally packaged, used), a discount of at least 5% of the sales value, but at least € 40, – and the applicable VAT will be deducted. The customer remains free to prove that depreciation or expenses have not arisen in this amount.
11.3. EXERTIS does not deliver goods on trial, unless expressly agreed otherwise.
12. Packaging Ordinance
12.1. Pursuant to Section 15 (1) Sentence 1 of the Packaging Act, manufacturers and distributors of transport packaging (No. 1), sales and secondary packaging that does not typically accumulate as waste at private end consumers after use (No. 2), sales and secondary packaging for which system participation is not possible due to system incompatibility pursuant to Section 7 (5) of the Packaging Act (No. 3), sales packaging containing hazardous substances (No. 4) or reusable packaging (No. 5) shall be obliged to take back, free of charge, used, empty packaging of the same type, shape and size as that which they put into circulation at the place of actual transfer or in the immediate vicinity thereof in order to reuse or recycle it. By way of derogation from the foregoing, the customer and EXERTIS agree, pursuant to Section 15 (1) sentence 4 of the German Packaging Act, that the customer shall take back any packaging pursuant to Section 15 (1) Sentence 1 Numbers 1 to 4 of the German Packaging Act at its place of business or at any other place to be determined by it and within its sphere of responsibility and shall inform its respective principals or customers about the return option and the purpose of the return. The costs for the return as well as the proper disposal or recycling shall be borne by the customer. The return of packaging within the meaning of Section 15 (1) Sentence 1 Numbers 1 to 4 of the Packaging Act at the place of business of EXERTIS shall be excluded.
12.2. Unless otherwise agreed in accordance with Section 15 (1) sentence 4 of the German Packaging Act (individual agreement) in deviation from Clause 11.1, EXERTIS shall, in order to comply with the take-back obligations pursuant to Section 15 of the German Packaging Act, ensure the take-back as well as the proper and correct recycling of the packaging delivered by EXERTIS from the customer. The return shall be effected by collection of the packaging by a third party to be commissioned by EXERTIS upon request by the customer. The costs incurred for collection and recycling are to be borne by the customer. If the packaging delivered by EXERTIS is not returned in accordance with this provision, the customer shall be responsible for the proper and correct recycling of the packaging at its own expense.
12.3. Clause 11.1 does not apply to reusable packaging within the meaning of Section 15 (1) No. 5 in conjunction with Section 3 (3) of the Packaging Act. This applies in particular to standardized Euro pallets and skeleton containers.
12.4. To the extent that the goods have been handed over to the customer on Euro pallets or lattice boxes (load carriers) (reusable packaging within the meaning of Section 3 (3) of the German Packaging Act), the customer shall surrender to EXERTIS load carriers in the same number as well as the same type and quality at the place of the original delivery.
13. Export control
13.1. All goods and technical know-how are delivered by EXERTIS in compliance with the currently valid AWG/AWV/EG Dual-Use Regulation as well as the US export regulations and are intended for use and to remain in the country of delivery agreed with the customer. The customer may not export goods without obtaining all necessary licences thereunder and will not resell such goods to a purchaser knowing (or being given reasonable grounds to suspect) that the purchaser intends to export such goods without first obtaining either such licences or a copy of such licences obtained by the purchaser.
13.2. The customer informs himself independently about the currently valid regulations and regulations (Federal Office of Economics and Export Control, 65760 Eschborn or Bureau of Industry and Security, Washington, DC 20230). Regardless of whether the customer indicates the final destination of the goods, it is the responsibility of the customer to obtain the necessary permits from the respective competent foreign trade authorities before the customer exports the goods. EXERTIS has no obligation to provide information.
13.3. Any further delivery of the goods by the customer to third parties, with and without the knowledge of EXERTIS, requires compliance with the legal regulations and the transfer of the relevant documents. The customer is fully liable for non-compliance with the relevant provisions.
14. Confidentiality
14.1. The customer shall be obliged to treat all information about EXERTIS that becomes available to the customer and is designated as confidential or can be identified as a trade or business secret due to other circumstances as confidential for an unlimited period of time, and the customer must not record, disclose or exploit any such information.
14.2. The customer shall enter into adequate contractual agreements with the employees and agents working for it to ensure that they, too, refrain for an unlimited period of time from any exploitation, disclosure or unauthorised recording of such trade and business secrets for their own purposes.
14.3. Drawings, models, patterns, samples or similar items may only be used for the purpose of performing the contract and must not be made available to, or otherwise accessible by, unauthorised third parties. Such items may only be reproduced where this is necessary for operational reasons, within the limits defined by copyright law.
15. Final provisions
15.1. The legal relationship between the Customer and EXERTIS shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Movement of Goods (CISG).
15.2. The exclusive place of jurisdiction for all claims arising from the business relationship against merchants and legal entities under public law is the registered office of COMM-TEC GMBH. EXERTIS is also entitled to bring an action at the registered office of the customer as well as at any other permissible place of jurisdiction.
15.3. In the case of cross-border services, the registered office of EXERTIS is the exclusive place of jurisdiction for all disputes arising from the contractual relationship (Article 23 EuGVVO). However, EXERTIS reserves the right to sue the customer at its general place of jurisdiction or to appeal to any other court competent under the EuGVVO.
15.4. The place of performance for all services provided by the customer and EXERTIS is the registered office of COMM-TEC GMBH.
15.5. The transfer of rights and obligations of the customer to third parties is only possible with the written consent of EXERTIS.
COMM-TEC GmbH, November 2022
1. Scope of application
1.1. These General Terms and Conditions of Sale (hereinafter referred to as "Terms and Conditions") apply to all business transactions between COMM-TEC GmbH, trading as Exertis Pro AV (hereinafter: "EXERTIS") and the customer, even if they are not expressly referred to in subsequent contracts.
1.2. Terms and conditions of the customer that conflict with, supplement or deviate from these Terms and Conditions shall not become part of the contract, unless EXERTIS has expressly agreed to their application in writing. These Terms and Conditions shall also apply if EXERTIS carries out a delivery to the customer without reservation whilst being aware of the customer’s conflicting or deviating terms and conditions.
1.3. Agreements which supplement or deviate from these Terms and Conditions and which are made between EXERTIS and the customer for the performance of a contract must be set out in writing in the contract. This also applies to the cancellation of this written form requirement.
1.4. Rights to which EXERTIS is entitled by law beyond these Terms and Conditions shall remain unaffected.
2. Conclusion of contract and quality owed
2.1. EXERTIS' offers and cost estimates are subject to change and non-binding, unless they are expressly designated as binding. Illustrations, pictures, drawings, information about weight, measurement, performance and dimensions and other descriptions of the goods that may be contained in the documentation which forms part of the offer shall be approximations only unless they are expressly promised to be binding, in writing or electronically. They shall not constitute an agreement or guarantee of a corresponding quality of the goods. EXERTIS reserves all property rights and copyrights to all offer documents. Such documents shall not be made accessible to third parties.
2.2. Unless and insofar as expressly agreed otherwise in writing, the purpose of the contract pursuant to Section 434 (2) No. 2 of the German Civil Code (BGB) shall be limited to the delivery of goods which comply with the quality owed. The quality of the goods that is owed shall be conclusively agreed in the order and the order confirmation. Unless and insofar as expressly agreed otherwise in writing, the goods shall not have to comply with the objective requirements pursuant to Section 434 (3) of the German Civil Code (BGB). In particular, it shall not be owed that the goods are suitable for normal use and/or that they have a quality which is usual for goods of the same type and which the customer can expect taking into account (i) the type of goods and (ii) the public statements made by EXERTIS or on behalf of EXERTIS or by another person in preceding links in the contractual chain, in particular in advertising or on the label. Moreover, the goods do not have to correspond to the quality of a sample or specimen that EXERTIS provided to the customer prior to the conclusion of the contract.
2.3. An order shall not become binding until it has been confirmed by EXERTIS by means of a written order confirmation. An order confirmation created with the help of automatic devices and therefore not containing a name and signature shall be deemed a written order confirmation.. If EXERTIS does not respond to offers, orders, requests or other declarations of the customer, this shall only be deemed approval if an express written agreement to this effect has been made between EXERTIS and the customer. To the extent that an order confirmation contains obvious errors, misspellings or calculation errors, it shall not be binding upon EXERTIS.
2.4. A prerequisite for the use of the goods is that the customer concludes licence agreements with the manufacturers which allow the customer to use the software used by these manufacturers in the product. To the extent that the conclusion of a licence agreement pursuant to this Clause 2.4, sentence 1 is a prerequisite for the use of the goods, EXERTIS shall not assume any liability. The customer can view the contents of these licence agreements at WWW before concluding the contract. The licence agreement shall be concluded exclusively between the named manufacturer and the Purchaser. In addition to these Terms and Conditions, the special license and other conditions of the respective manufacturer shall apply to the offer and order of software, digital content and goods with included third-party products. The customer independently informs his customers of the end user license agreements ("EULA") of the manufacturers.
3. Cancellation of a binding order by the customer
3.1. Cancellation of a binding order by the customer is generally excluded. This shall apply in particular to special procurements.
3.2. If, in exceptional cases, EXERTIS decides to accept the cancellation of a binding order as a gesture of goodwill, EXERTIS shall be entitled to charge a cancellation fee. This applies in particular to non-stock goods. The purchaser is at liberty to prove that expenses in this amount were not incurred.
4. Prices
4.1. The agreed price shall be the price in euros that is stated in the order confirmation, plus value-added tax. The statutory value-added tax is not included in the price and shall be stated separately in the invoice at the statutory rate which applies on the date of issue of the invoice.
4.2. If, as an exception, the order confirmation does not contain any prices, the price list applicable at the time the respective delivery is made shall apply.
4.3. Unless specifically otherwise agreed, the prices are "ex works" (EXW according to Incoterms® 2020), excluding packaging, transport, insurance and installation. In the event of a sale including shipment, as defined in the second sentence of clause 4.1 below, the customer shall bear the transport costs and, where applicable, the cost of the transport insurance requested by the customer.
4.4. If the period between the order confirmation and the delivery exceeds four months and there is an increase in prices during this period of time, in particular, because of an increase in wages or in the cost of raw materials, a general increase in prices due to inflation, exchange rates or similar circumstances, EXERTIS shall have the right to charge an appropriately increased price. This shall also apply if, upon submission of the offer or upon order confirmation by EXERTIS or upon EXERTIS entering into a framework agreement in which the prices are firmly agreed, the prices of the raw materials used for the goods concerned or other significant cost factors, such as energy, wage, transport or insurance costs or exchange rates, increase significantly (i.e. by at least 10%); in this case, EXERTIS shall have the right to reasonably raise the prices to the extent that they are affected by this increase in costs. EXERTIS shall carry out such price increases taking into account the customer’s legitimate interests, in particular with regard to any commitments made by the latter to continue to supply the goods at a particular price. Upon request, EXERTIS shall furnish the customer with evidence of the factors leading to the increase in prices. If such costs or charges are reduced or eliminated, EXERTIS shall conversely be obliged to reduce the agreed price accordingly.
4.5. EXERTIS shall further have the right to charge an appropriately increased price in case of any request by the customer to change the delivery date(s), the delivery location, quantities, capacity, form, content, style, description or types of goods ordered.
5. Terms of delivery and transfer of risk
5.1. Unless expressly otherwise agreed, delivery shall be “ex works” (EXW, as defined by Incoterms® 2020), 73066 Uhingen, Germany. At the request and expense of the customer, the goods will be shipped to a different destination (hereinafter: “sale including shipment”); in this case, EXERTIS shall have the right to determine the manner of shipment. At the request and expense of the customer, EXERTIS shall take out a transport insurance policy and insure the goods against the risks specified by the customer.
5.2. The written order confirmation of EXERTIS is decisive for the scope of the delivery. Changes to the scope of delivery and to the delivery item itself require the written confirmation of EXERTIS in order to be effective. We reserve the right to make changes to the design and shape of the goods, unless the changes are significant and reasonable for the customer. Partial deliveries are permissible, insofar as this is reasonable for the customer.
5.3. The agreement of delivery periods must be made in writing. Delivery periods are non-binding, unless they are expressly designated as binding.
5.4. The delivery period begins with the dispatch of the order confirmation by EXERTIS, but not before the complete provision of the documents, approvals, releases to be procured by the customer, the clarification of all technical questions and the receipt of an agreed down payment, if any, and the customer has timely and properly provided any further cooperation owed.
5.5. An agreed delivery period shall be deemed met if, by the time the delivery period expires, EXERTIS has made the goods available at the place of delivery or – in the event of a sale including shipment according to the second sentence of clause 4.1 above – has handed the goods over to the person in charge of carrying out the transport or the customer has announced that it will refuse acceptance. The delivery shall be conditional upon EXERTIS being timely and properly supplied by its own suppliers.
5.6. If the non-compliance with the delivery periods is due to force majeure and other obstacles for which EXERTIS is not responsible, such as war, terrorist attacks, or import and export restrictions, including obstacles that affect any of EXERTIS’ suppliers, the agreed delivery periods shall be extended for the duration of such obstacles. This shall also apply if EXERTIS and/or its suppliers are affected by industrial action.
5.7. The risk of accidental loss or destruction or accidental deterioration of the goods shall pass to the customer as soon as EXERTIS has made the goods available at the place of delivery mentioned in the first sentence of clause 4.1 above or – in the event of a sale including shipment, as defined in the second sentence of clause 4.1 above – as soon as the goods have been handed over to the person in charge of carrying out the transport. This shall also apply if partial deliveries are made or if, unlike stated in the second sentence of clause 4.1 above, EXERTIS has agreed to bear the transport costs in any particular case.
5.8. If the customer defaults in its obligation to accept the goods or violates other obligations to cooperate, EXERTIS may claim compensation for the damage incurred, including any additional expenses as a result of such default as follows: an amount equal to 0.5% of the price of the goods supplied per day of default, limited, however, not a maximum of 5% of the net price of the goods supplied in total. The contracting parties are free to assert further claims for damages or prove that the amount of costs actually suffered was smaller. The risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time when he is in default of acceptance. The goods shall be deemed supplied – in particular, with regard to the warranty periods and the obligation to pay – when the customer starts to default on its obligation to accept the goods.
5.9. Without prejudice to the customer’s claims for defects, if any, the customer shall be obliged to take delivery of the goods supplied even if they contain minor defects. The customer shall further be obliged to take delivery of the goods supplied if the goods made available exceed or fall short of the quantity ordered by up to 5% or if the goods made available are delivered early, provided the delivery does not occur significantly ahead of schedule.
5.10. A delay in delivery shall only entitle the customer to rescind the contract if EXERTIS is responsible for the delay.
6. Terms of payment
6.1. Unless otherwise agreed in writing, payment of the gross purchase price plus possible costs for packaging, freight and insurance must be made in advance 15 days from receipt of the order confirmation by transfer to a bank account of EXERTIS the details of which have been stated in the order confirmation. The payment of invoices for services provided by EXERTIS such as e.g repairs, programming, training, commissioning, etc. must be made within 8 days net from receipt of the invoice by transfer to a bank account of EXERTIS the details of which have been stated in the invoice. The deduction of cash discount requires a written agreement.
6.2. A payment shall be deemed to have been made when EXERTIS can dispose of the amount. If EXERTIS accepts means of payment other than cash, payment shall again be deemed made when the amount owed has been credited unconditionally to the bank account of EXERTIS and/or when EXERTIS is able to dispose of such amount.
6.3. If reminders become necessary after expiry of the payment period, the resulting costs shall be charged to the customer.
6.4. If the time allowed for payment is exceeded, EXERTIS may charge default interest at a rate of 9 percentage points above the base rate of the European Central Bank; the customer shall be free to prove that the interest loss actually suffered remains significantly below this amount. The preceding provisions shall not affect EXERTIS’ right to claim compensation for any further damage suffered.
6.5. If the customer is in default of payment, EXERTIS shall have the right to demand immediate payment of all claims arising from the business relationship which are due and not subject to any defences, even if such claims are not yet due.
6.6. EXERTIS shall have the right to make the performance of outstanding deliveries or services contingent upon the customer paying in advance, or upon the customer providing security if, after conclusion of the contract, circumstances become known which are likely to significantly reduce the creditworthiness of the customer and which jeopardize the payment of open claims of EXERTIS by the customer from the respective contractual relationship. This shall apply accordingly if the customer refuses to pay, or fails to pay, any outstanding claims of EXERTIS and undisputed objections against EXERTIS’ claims or objections that have been established in a judgment which cannot be appealed against do not exist.
6.7. Counterclaims of the customer shall only entitle him to set-off and to assert a right of retention if they have been legally established or are undisputed. The customer can only assert a right of retention if it is based on the same contractual relationship.
7. Retention of title
7.1. The goods delivered by EXERTIS remain the property of EXERTIS until they have been paid for in full.
7.2. Furthermore, the goods supplied shall remain EXERTIS’ property until all claims arising from the business relationship between the customer and EXERTIS have been paid in full.
7.3. The customer is obliged to treat the goods subject to retention of title with care for the duration of the retention of title. In particular, he is obliged to insure the goods at his own expense against fire, water and theft. The customer hereby assigns to EXERTIS all claims for compensation arising from this insurance. EXERTIS hereby accepts the assignment. If an assignment is not permitted, the customer hereby irrevocably instructs his insurer to make payments, if any, only to the EXERTIS. Further claims of EXERTIS remain unaffected. Upon request, the customer shall provide EXERTIS with proof of the conclusion of the insurance contract.
7.4. If the goods which are subject to this retention-of-title clause are combined with other items that do not belong to EXERTIS such that they form a single item, EXERTIS shall acquire proportionate co-ownership of this single item, according to the ratio of the value (final amount invoiced, including value-added tax) of the goods which are subject to this retention-of-title clause and the value of the other items at the time they are combined. In the event that the goods which are subject to this retention-of-title clause are combined with other items in such a manner that the customer’s item is to be considered the principal item, the customer hereby transfers to EXERTIS proportionate co-ownership of this item. EXERTIS accepts this transfer. The provisions of this clause 6.4 shall apply accordingly if the goods which are subject to this retention-of-title clause are mixed or processed with other items.
7.5. The customer shall have the right, subject to revocation, to sell the goods which are subject to this retention-of-title clause in the ordinary course of business. The customer shall have no right to pledge the goods which are subject to this retention-of-title clause, to transfer them by way of security, or to make any other dispositions which jeopardise the ownership of EXERTIS. In the event of attachments or other encroachments by third parties, the customer must notify EXERTIS without undue delay in writing and provide all the information needed, advise the third party of EXERTIS’ property rights, and assist with any measures taken by EXERTIS to protect the goods which are subject to this retention-of-title clause.
7.6. The customer hereby assigns to EXERTIS its claims arising from the resale of the goods which are subject to this retention-of-title clause, along with all ancillary rights, in an amount equal to the amount invoiced, including value-added tax. EXERTIS hereby accepts this assignment. If the goods which are subject to this retention-of-title clause are sold with other goods not supplied by EXERTIS, the claim arising from resale shall be assigned proportionately, according to the ratio of the value of the goods which are subject to this retention-of-title clause (final amount invoiced, including value-added tax) and the value of the other goods sold. If assigning such claims is not allowed, the customer hereby irrevocably instructs the third-party debtor to make payments, if any, only to EXERTIS.
7.7. The customer shall be authorised, subject to revocation, to collect the claims which have been assigned to EXERTIS in its own name as a trustee acting on behalf of EXERTIS. This shall not affect EXERTIS’ right to collect such claims itself. However, EXERTIS shall not assert such claims itself or revoke the authority to collect claims as long as the customer properly performs its payment obligations. If, however, the customer breaches the contract – in particular, if the customer defaults on a payment – the customer must disclose the assigned claims and the respective debtors to EXERTIS, inform the respective debtors of the assignment, and provide EXERTIS with all the records and all the information needed by EXERTIS to assert the claims.
7.8. EXERTIS may revoke the customer’s right to resell the goods and the authority to collect claims if the customer fails to properly perform its payment obligations to EXERTIS, defaults on one or more payments or stops payment, or if a petition is filed to institute insolvency proceedings against the customer’s assets.
7.9. At the request of the customer, EXERTIS shall be obliged to release the security provided to the extent that the realisable value of such security exceeds EXERTIS’ claims arising from its business relationship with the customer by more than 10%, upon deduction of the mark-downs customary in the banking business. EXERTIS may choose which security interests it wishes to release.
7.10. In the event that goods are supplied to destinations with other legal systems where the retention-of-title provisions set out in this clause 6 are not legally valid, the customer hereby grants EXERTIS an equivalent security interest. If the creation of such a security interest requires further measures, the customer shall do whatever is necessary to grant EXERTIS such security interest without undue delay. The customer shall assist with all measures that are required for, and conducive to, the validity and enforceability of such security interests.
8. Warranty
8.1. Liability for material defects and defects of title shall be based exclusively on the quality owed as conclusively agreed in the order and order confirmation.
8.2. The customer's rights arising from defects shall be contingent upon the customer performing his statutory inspection and notification obligations (§§ 377, 381 HGB), in particular upon the customer inspecting all goods supplied without undue delay upon receipt and giving EXERTIS without undue delay written notice of any obvious defects and of defects that could be identified during such inspection. Hidden defects must be reported by the customer to EXERTIS in writing without undue delay after their discovery. In order for such notice to be deemed given without undue delay within the meaning of the first and second sentence above, it must be given within 8 working days; this deadline is met if EXERTIS receives the notice before the expiry of the aforesaid period. If the customer fails to properly inspect and/or report defects, EXERTIS's liability for the defect is excluded. The customer must describe the defects in writing when notifying EXERTIS.
8.3. Claims for subsequent performance are excluded in the event of minor, technically unavoidable deviations in quality, colour, width, weight, equipment or design.
8.4. In the event of defects in the goods, EXERTIS is entitled, at its own discretion, to subsequent performance by remedying the defect or delivering defect-free goods.
8.5. The statutory right of withdrawal of the customer is excluded if he is unable to return the received service and this is not based on the fact that the return is impossible according to the nature of the received service, is the fault of EXERTIS or the defect has only become apparent during the processing or transformation of the goods. The right of withdrawal is further excluded if EXERTIS is not responsible for the defect and if EXERTIS has to pay compensation for the value instead of the return warranty.
8.6. If the object of the contract is not located at the place of delivery, the customer shall bear all additional costs incurred by EXERTIS in remedying defects, unless the transfer to another location corresponds to the contractual use.
8.7. Rights arising from defects shall not exist
‒ in the event of an insignificant deviation from the agreed quality or an insignificant impairment of usability, where agreed (including, without limitation, deviations in structure and colour from the sample or from catalogue illustrations and/or deviations from previous deliveries to the extent that such deviations are due to the nature of the materials used and are customary in trade);
‒ in the event of natural wear and tear (typical wearing parts being, in particular, the products offered by EXERTIS as replacement parts; upon request, EXERTIS will provide the customer with a list of replacement parts);
‒ in the event of defects resulting from improper handling (for example, other than as described in the operating manual), improper storage or maintenance, or excessive strain or use after the risk has passed;
‒ in the event of defects resulting from force majeure, from extraordinary external impacts that are not intended according to the contract, or from the goods being used in a manner which does not correspond to their contractually intended or customary use.
8.8. Furthermore, rights arising from defects in quality shall not exist
‒ if the goods supplied are altered by a third party, or through the installation of parts from another manufacturer, unless the alteration did not cause the defect or the third party was expressly instructed by EXERTIS;
‒ if the customer had the defect removed by technically inexperienced third parties.
8.9. EXERTIS does not accept liability for defects which arise as a result of the customer insisting on a manner of processing or a selection of materials that deviates from EXERTIS’ specifications.
8.10. Warranty claims may be asserted by the customer only. The customer shall have no right to assign its warranty claims against EXERTIS unless EXERTIS has expressly approved such assignment in writing.
8.11. The provisions of this clause 7 shall apply accordingly to defects in title which do not consist in an infringement of third-party intellectual property rights.
9. Liability and limitation
9.1. EXERTIS contractual liability for damages as part of its warranty obligations shall, in any case, be conditional upon fault (wilful misconduct or negligence), even if
no-fault liability is provided for by law (in particular, by the United Nations Convention on Contracts for the International Sale of Goods (CISG) within the context of international business transactions). This shall not affect the mandatory statutory liability for product defects (in particular, under the German Product Liability Act).
9.2. EXERTIS shall be liable without limitation – on whatever legal grounds – in the event of a breach of guarantee or death, bodily injury or damage to health. The same shall apply to wilful misconduct and gross negligence, mandatory statutory liability for product defects (in particular, under the German Product Liability Act), and liability if defects were concealed with fraudulent intent.
9.3. In cases of slight negligence, EXERTIS shall – subject to clause 8.2 above – only be liable if material obligations are violated which result from the nature of the contract and are of particular importance for achieving the purpose of the contract. If such obligations are violated, and also in the event of default or if performance is impossible, EXERTIS’ liability shall be limited to the damage that can typically be expected with this contract.
9.4. In the event of failure to meet a delivery date, EXERTIS’ liability for damage suffered by the customer as a result of the delay shall – subject to clause 8.2 above – be limited to a maximum amount equal to 5% of the agreed net price. The contracting parties may assert further claims for damages or prove that the amount of damage actually suffered was smaller.
9.5. The limitation period for the customer's claims for defects is 12 months and shall commence upon the delivery of the goods. The above limitation period shall also apply to tort claims which are based on a defect of the goods. The limitation period shall not start anew as a result of a repair or replacement delivery. In the cases referred to in clause 8.2 above, the statutory limitation rules shall apply instead. The unlimited liability of EXERTIS for damages from the breach of a guarantee or from injury to life, body or health, for intent and gross negligence as well as for product defects remains unaffected. Also unaffected are the recourse rights of the customer according to §§ 478, 479 BGB when selling newly manufactured goods to an end user.
9.6. The suspension of the expiration of the statute of limitations for claims under a right of recourse set forth in Section 445b (2) sentence 1 of the German Civil Code (BGB) shall end no later than five years after the date on which EXERTIS delivered the item to the customer. In the event of a final sale of the goods to a consumer, EXERTIS may only invoke this provision if EXERTIS simultaneously grants the customer equivalent compensation.
9.7. The sale of used goods shall be made to the exclusion of any claims for material defects. The statutory claims of the customer in the cases pursuant to Clauses 8.2 and 8.3 shall remain unaffected.
9.8. If, prior to the conclusion of a contract, EXERTIS has breached a pre-contractual obligation through slight negligence and as a result, the customer has incurred a claim for damages, the customer waives its right to assert such claim for damages upon conclusion of the contract.
10. Withdrawal
10.1. In the event of breach of contract by the customer, in particular in the event of default in payment, EXERTIS shall be entitled, without prejudice to its other contractual and statutory rights, to withdraw from the contract after expiry of a reasonable grace period set for performance.
10.2. EXERTIS is entitled to withdraw from the contract without setting a grace period if the customer ceases to make payments or applies for the opening of insolvency proceedings or comparable proceedings for the settlement of debts over his assets.
10.3. After notice of withdrawal from the contract has been given, the customer must grant EXERTIS or EXERTIS’ agents without undue delay access to the goods which are subject to the retention-of-title clause and surrender these goods. For the purposes of the settlement of EXERTIS’ due claims against the customer, EXERTIS may sell the goods which are subject to the retention-of-title clause otherwise after a timely announcement to this effect. Upon deduction of reasonable selling costs, the proceeds from sale shall be credited against the customer’s liabilities.
10.4. Statutory rights and claims are not restricted by the provisions contained in this Section 9.
11. Return
11.1. If the customer has ordered the goods in a legally binding manner and the goods do not contain any defects, an exchange of the goods shall not be possible, as a general rule. Invoice number and invoice date must be indicated.
11.2. If EXERTIS decides in exceptional cases to take the goods back from the customer as a gesture of goodwill, EXERTIS may issue a credit note, depending on the condition of the goods (new, originally packaged, used), a discount of at least 5% of the sales value, but at least € 40, – and the applicable VAT will be deducted. The customer remains free to prove that depreciation or expenses have not arisen in this amount.
11.3. EXERTIS does not deliver goods on trial, unless expressly agreed otherwise.
12. Packaging Ordinance
12.1. Pursuant to Section 15 (1) Sentence 1 of the Packaging Act, manufacturers and distributors of transport packaging (No. 1), sales and secondary packaging that does not typically accumulate as waste at private end consumers after use (No. 2), sales and secondary packaging for which system participation is not possible due to system incompatibility pursuant to Section 7 (5) of the Packaging Act (No. 3), sales packaging containing hazardous substances (No. 4) or reusable packaging (No. 5) shall be obliged to take back, free of charge, used, empty packaging of the same type, shape and size as that which they put into circulation at the place of actual transfer or in the immediate vicinity thereof in order to reuse or recycle it. By way of derogation from the foregoing, the customer and EXERTIS agree, pursuant to Section 15 (1) sentence 4 of the German Packaging Act, that the customer shall take back any packaging pursuant to Section 15 (1) Sentence 1 Numbers 1 to 4 of the German Packaging Act at its place of business or at any other place to be determined by it and within its sphere of responsibility and shall inform its respective principals or customers about the return option and the purpose of the return. The costs for the return as well as the proper disposal or recycling shall be borne by the customer. The return of packaging within the meaning of Section 15 (1) Sentence 1 Numbers 1 to 4 of the Packaging Act at the place of business of EXERTIS shall be excluded.
12.2. Unless otherwise agreed in accordance with Section 15 (1) sentence 4 of the German Packaging Act (individual agreement) in deviation from Clause 11.1, EXERTIS shall, in order to comply with the take-back obligations pursuant to Section 15 of the German Packaging Act, ensure the take-back as well as the proper and correct recycling of the packaging delivered by EXERTIS from the customer. The return shall be effected by collection of the packaging by a third party to be commissioned by EXERTIS upon request by the customer. The costs incurred for collection and recycling are to be borne by the customer. If the packaging delivered by EXERTIS is not returned in accordance with this provision, the customer shall be responsible for the proper and correct recycling of the packaging at its own expense.
12.3. Clause 11.1 does not apply to reusable packaging within the meaning of Section 15 (1) No. 5 in conjunction with Section 3 (3) of the Packaging Act. This applies in particular to standardized Euro pallets and skeleton containers.
12.4. To the extent that the goods have been handed over to the customer on Euro pallets or lattice boxes (load carriers) (reusable packaging within the meaning of Section 3 (3) of the German Packaging Act), the customer shall surrender to EXERTIS load carriers in the same number as well as the same type and quality at the place of the original delivery.
13. Export control
13.1. All goods and technical know-how are delivered by EXERTIS in compliance with the currently valid AWG/AWV/EG Dual-Use Regulation as well as the US export regulations and are intended for use and to remain in the country of delivery agreed with the customer. The customer may not export goods without obtaining all necessary licences thereunder and will not resell such goods to a purchaser knowing (or being given reasonable grounds to suspect) that the purchaser intends to export such goods without first obtaining either such licences or a copy of such licences obtained by the purchaser.
13.2. The customer informs himself independently about the currently valid regulations and regulations (Federal Office of Economics and Export Control, 65760 Eschborn or Bureau of Industry and Security, Washington, DC 20230). Regardless of whether the customer indicates the final destination of the goods, it is the responsibility of the customer to obtain the necessary permits from the respective competent foreign trade authorities before the customer exports the goods. EXERTIS has no obligation to provide information.
13.3. Any further delivery of the goods by the customer to third parties, with and without the knowledge of EXERTIS, requires compliance with the legal regulations and the transfer of the relevant documents. The customer is fully liable for non-compliance with the relevant provisions.
14. Confidentiality
14.1. The customer shall be obliged to treat all information about EXERTIS that becomes available to the customer and is designated as confidential or can be identified as a trade or business secret due to other circumstances as confidential for an unlimited period of time, and the customer must not record, disclose or exploit any such information.
14.2. The customer shall enter into adequate contractual agreements with the employees and agents working for it to ensure that they, too, refrain for an unlimited period of time from any exploitation, disclosure or unauthorised recording of such trade and business secrets for their own purposes.
14.3. Drawings, models, patterns, samples or similar items may only be used for the purpose of performing the contract and must not be made available to, or otherwise accessible by, unauthorised third parties. Such items may only be reproduced where this is necessary for operational reasons, within the limits defined by copyright law.
15. Final provisions
15.1. The legal relationship between the Customer and EXERTIS shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Movement of Goods (CISG).
15.2. The exclusive place of jurisdiction for all claims arising from the business relationship against merchants and legal entities under public law is the registered office of COMM-TEC GMBH. EXERTIS is also entitled to bring an action at the registered office of the customer as well as at any other permissible place of jurisdiction.
15.3. In the case of cross-border services, the registered office of EXERTIS is the exclusive place of jurisdiction for all disputes arising from the contractual relationship (Article 23 EuGVVO). However, EXERTIS reserves the right to sue the customer at its general place of jurisdiction or to appeal to any other court competent under the EuGVVO.
15.4. The place of performance for all services provided by the customer and EXERTIS is the registered office of COMM-TEC GMBH.
15.5. The transfer of rights and obligations of the customer to third parties is only possible with the written consent of EXERTIS.
COMM-TEC GmbH, November 2022