General Terms and Conditions

Synwer GmbH, as of April 2016

  1. General Terms / Exclusive Validity
  2. The following General Terms and Conditions (GT&C) shall apply exclusively to entrepreneurs , legal persons under public law and separate funds under public law.
  1. The subsequent conditions shall apply to all contracts concluded between the Buyer and us. They are also valid for all future business relations, even if they are not explicitly reconfirmed. Upon receipt of deliveries or acceptance of services at the latest our GT&C shall be deemed accepted. Any deviating conditions on the part of the Buyer which we have not expressly acknowledged in writing shall be completely non-binding, even if we do not expressly contradict them. The following GT&C shall apply even if we have completed an order without reservations, although we are aware of the buyer’s conflicting or deviating conditions.
  1. Changes to delivery details and services shall be binding only if confirmed by us in writing. All prior agreements not contained in the order confirmation are invalid. Supplementary agreements need to be confirmed by us in writing.
  1. The Contract
  2. Our offers are non-binding and subject to change unless they are expressly stated as binding. They are valid for a maximum of 90 days. Contracts shall be deemed concluded only after our written order confirmation or through completion of the order.
  1. We may accept an order placed by a Buyer that qualifies as an offer to conclude a contract within two weeks by sending an order confirmation.
  1. We reserve the right to make technical and design changes to the descriptions and specifications in our prospectus, quotations and written documents. We also reserve the right to make changes to services, constructions and materials as they improve and develop. The Buyer shall be unable to derive any claims from these changes. Information about our products (technical data, dimensions, etc.) and services is approximate and inexact; such information is not guaranteed unless a guarantee is extended explicitly and in writing.
  1. We reserve the titles, copyright and all other proprietary rights to all samples, illustrations, calculations and other documents, including documents in electronic form. They may not be made accessible to third parties without our written permission and shall be returned immediately upon request.

III. Terms of Payment

  1. Unless otherwise agreed, the price quoted in the contract shall be a lump sum. It is based upon costs for materials, labour etc. that were applicable at the time the contract was concluded. If our suppliers’ prices or other costs transferred to our products change considerably between the conclusion of the contract and the delivery, we will be entitled and obliged to adjust the price subject to our reasonable discretion without undue delay, provided a period of more than four month has elapsed between the conclusion of the contract and the delivery. This also applies if the Buyer has already made a down payment. The increase of one cost element may only be used to justify a price increase to the extent in which there is no compensation through decreasing costs in other cost elements. In case of a decrease of a cost element the price is to be reduced insofar as the cost decrease is not compensated by increases in other areas. According to § 315 paragraph 3 BGB (German Civil Code) the price adjustment is binding on the other party only if it is equitable.
  1. Prices are subject to VAT in the amount valid at the time of invoicing. The buyer shall be responsible for all applicable licence fees and appraisal fees.
  1. Discounts are deductible only by prior written agreement between us and the Buyer. Remunerations are to be paid without any deductions immediately upon receipt of the invoice provided that this has not been otherwise agreed by the Contracting Parties in the order confirmation. A payment is considered settled only after the sum has become available to us. If payment is made by cheque, the payment is effected only after the cheque has been cashed in the ordinary course of business by the bank it was drawn upon.
  1. If it becomes apparent after conclusion of the contract that our claim to payment is at risk because of the Buyer’s lack of adequate financial means, we are entitled to the rights according to § 321 BGB (German Civil Code), also for all other outstanding deliveries and services deriving from the business relationship with this Buyer. If the Buyer does not effect payment or does not provide appropriate security within a reasonable period of time, we are entitled to make payable all claims from the current financial year.
  1. If the Buyer defaults on payment, the legal provisions apply.
  1. In cases 4. and 5. we may demand advance payment for outstanding deliveries.
  1. The Buyer shall be entitled to set-off only if the counterclaims result from the same contractual relationship or have been adjudged by a non-appealable judgement , if they have been admitted by us, or if they are undisputed. The Buyer may exercise rights of retention only insofar as the counterclaim is based upon the same contractual relationship.
  1. Retention of Title
  2. Until final settlement of all claims, to which we or the Buyer are entitled at present or in the future, including all outstanding balances in the current account, the delivered goods (reserved goods) shall remain our property. If the Buyer does not render an act of performance, which is due, or does not render it in conformity with the contract, we have the right to revoke the contract and to take back any goods subject to retention of title after having established a reasonable grace period. If we take back retained goods, this action constitutes a cancellation of the contract. If we seize the goods this action constitutes a cancellation of the contract. We are entitled to use the retained goods after taking them back. After deducting an adequate amount for utilization costs, the proceeds from utilization (net profit) is offset against the amount owed to us by the Buyer.
  1. The Buyer shall be obliged to handle the retained goods with due care and, in particular, to adequately insure them at replacement value and at their own expense against damage caused by fire, water and theft and generally against loss or damage. The buyer herewith assigns any and all insurance claims to us; we hereby accept such assignment. As far as maintenance and inspection is required, the Buyer must carry these works out at his own expense and on time.
  1. The Buyer is entitled to use or resell the retained goods in the orderly course of business as long as he is not in arrears. Pledging and transfer of ownership by way of security, are not permitted. Any claims arising from the resale or any other legal grounds (insurance, tort etc.) with respect to the reserved goods (including balances due from a current account) shall now be assigned to us; we hereby accept such assignment. We grant the Buyer our revocable authorization to collect the accounts receivable on their own account and in their own name. This authorization can be revoked at any time should the Buyer fail to fulfill their payment obligations. The Buyer shall not be allowed to cede and assign such claim under any circumstances, not even in the context of factoring, unless an obligation is simultaneously imposed on the factor to effect payment of consideration in the amount of receivables directly to us pending settlement of all accounts receivable by us from the Buyer.
  1. Processing or reforming of the retained goods by the buyer or a third party shall always be carried out on our behalf. As far as the retained product is processed together with other products which do not belong to us, we will acquire part ownership of the new object in the same ratio as the value of the reserved goods (final total of invoice including VAT) stands to the value of the other objects used at the time they were mixed. The provisions applying to the retained goods shall likewise apply to the new object resulting from such processing. Should the retained goods be inseparably mixed with other objects which are not our

property, we will acquire part ownership of the new object in the same ratio as the value of the reserved goods (final total of invoice including VAT) stands to the value of the other objects used at the time they were mixed. Should the processing / mixing be such that the object of the Buyer is regarded as the main object, it is agreed that the buyer transfers proportionate co-ownership to us; we hereby accept this partial ownership transfer. The buyer shall look after the sole property or co-owned property that results on our behalf.

  1. In the event of third-party access to the retained goods, particularly with regard to pledging, the buyer shall alert the third party to our title and notify us without delay so that we can assert our ownership rights. To the extent that the third party is not able to reimburse us for the judicial and extra-judicial costs incurred in the process of asserting our ownership rights, the Buyer shall be liable for the costs incurred by us.
  1. At the buyer’s request, we are obliged to release securities held by us to the extent that the value of the securities exceeds the claim to be secured by more than 10%. In this case we are responsible for the selection of the securities to be released. The value of the retained goods is calculated from the net invoice total of the goods we have delivered minus a safety margin of 1/3.
  1. Delivery
  2. The delivery time as indicated by us starts after the Buyer has met all obligations for which he is responsible, such as providing all necessary governmental authorizations; approvals or down payments.
  1. The delivery time has been kept if the product is ready for dispatch within the designated time period or if we have indicated our readiness to dispatch the product within the designated time period. If there is to be an inspection and approval, the approval date is decisive; this does not apply to legitimate rejections.
  1. If we are unable to deliver on time we will notify the buyer without undue delay.
  1. If we are not responsible for the delay, for example in the event of an energy shortage, import difficulties, operational and traffic disruptions, strikes, cases of force majeure or delays on the part of our suppliers the period of performance shall be reasonably extended. If we are still unable to deliver after an appropriate extension, both the buyer and we shall be entitled to withdraw from the agreement. All claims for damages because of delayed delivery are excluded.
  1. If after a delay on our part the customer is entitled to assert the discontinuance of their interests in the contract we shall be liable according to the legal provisions. In the event of negligently caused material and financial damage our liability shall be limited to the foreseeable damage typically occurring. Any fault of our representatives or agents shall be attributed to us.
  1. We are also liable to the Buyer for a delivery delay under the statutory provisions, if the delay is based on a deliberate or grossly negligent breach of contract on our part. Any fault of our representatives or agents shall be attributable to us. Our liability shall be limited to the foreseeable damage typically occurring provided the delay does not involve a deliberate breach of contract for which we are responsible.
  1. Whenever a late delivery is the result of a breach of an essential contractual obligation, in which case any fault of our representatives or agents shall be attributable to us, we accept liability in accordance with the legal provisions, providing that the liability remains limited to the foreseeable damage typically occurring.
  1. If we are responsible for the delay, the Buyer may withdraw from the contract according to the legal provisions, if they have previously set us a reasonable final deadline. If the buyer suffers damages as a result of a delay, they are entitled to a lump-sum compensation. This compensation amounts to 0.5 percent for every full week of delay, but at the most to a total of 5 percent of the value of that part of the service or work that cannot be used on time because of the delay.
  1. Any further liability for delayed delivery attributable to us is excluded. Such limitation on liability does not apply, if the delayed delivery on our part is occasioned intentionally or through gross negligence by us or the above flat-rate remuneration (Nr 8) is not sufficient to cover the foreseeable damage typically occurring. The buyer’s other statutory claims and rights in addition to the compensation claim to which the buyer is entitled because of the delay for which we are responsible shall remain unaffected.
  1. We reserve the right to make partial deliveries and provide partial performance at any time, in so far as the Buyer can be reasonably expected to accept them.
  1. If the Buyer delays acceptance we are entitled to claim compensation for the loss suffered and for any additional expenditure incurred. The same applies if the Buyer culpably violates their obligations to cooperate. The moment the default or inspection delay commences, the risk of accidental loss and accidental deterioration of the goods shall pass over to the buyer.
  1. The goods will be loaded and shipped uninsured at the Buyer’s risk. The goods shall be insured at the Buyer’s request and cost. We shall make every effort to take into consideration the buyer’s wishes and interests when it comes to the type and method of shipment. The buyer shall have to bear any extra costs incurred as a result of such accommodations. This also applies when a delivery of goods has been agreed upon.
  1. In accordance with the German Packaging Ordinance we do not take back any transport packaging material or any other type of wrapping, pallets excepted.
  1. If shipment is delayed at the Buyer’s request or if the delay is the buyer’s fault we will store the goods at the customer’s expense and risk. In this case notice that the goods are ready to be shipped shall be deemed to constitute shipment.
  1. Transfer of Risk
  2. The risk shall pass over to the Buyer as soon as the goods have left our factory or warehouse. This shall also apply if we provide additional Services, especially shipping costs or shipping. If an acceptance inspection is conducted, the risk shall pass over upon inspection. For partial deliveries this shall apply to the part already delivered.
  1. If shipping or inspection is delayed or does not take place due to reasons for which the Buyer is responsible, risk shall pass over to the Buyer as soon as we have signalled our willingness to ship or to have an acceptance inspection.
  1. At the Buyer’s request and cost we will insure their shipment against theft, breakage, transport, fire and water damage.

VII. Warranty

  1. Warranty claims by the Buyer shall only be considered if the Buyer has duly fulfilled his examination duties and adhered to complaint procedures according to § 377 HGB.
  1. If an acceptance which was agreed upon or which is required by law does not take place for reasons for which we are not responsible, claims based on material defects can no longer be enforced.
  1. No warranty is given for damage resulting from any of the following causes: improper or inappropriate use, faulty installation or assembly by the Buyer or a third party, deviation from our instructions for installation, natural wear and tear, incorrect or negligent handling, especially excessive use, defective construction work, electronic or electrical effects insofar as they are not our fault.
  1. If material defects do not become apparent until processing begins, complaints will only be considered if processing of the defective items stops immediately.
  1. If the buyer does not immediately give us the opportunity to inspect the faulty goods, if they do not put the faulty goods or samples thereof at our immediate disposal, especially when urged to do so, any warranty claims will expire immediately.
  1. In case of a justified and timely complaint, we will, at our discretion, repair the defective item or provide a fault-free replacement (remedial work).
  1. If the remedial work has failed or if it is rejected, the Buyer is entitled to reduce the purchase price or to withdraw from the contract after an appropriate deadline was set and has passed, provided that the defect is not insignificant and the goods have not been sold, processed or remodelled.
  1. The Buyer is entitled to compensation according to regulations under point VIII.
  1. Expenses incurred in the context of remedial work will only be paid by us insofar as they are deemed appropriate and proportionate to the purchase price.
  1. We will not reimburse the cost of transporting the goods to a location other than the place of performance unless this corresponds to their contractual use.
  1. Warranty claims shall expire one year after delivery to the Buyer, even if they are used in a building, unless this use was agreed upon in writing.
  1. Remedial work shall not cause the limitation period for warranty claims to start over.
  1. This shall have no effect on a Buyer’s claims if the loss is attributable to intent or gross negligence on our part, to fraudulently concealed defects, if we provide a guarantee or the Buyer’s right of recourse according to §478 BGB, as long as these do not go beyond the material defect claims for which the law makes provisions.
  1. In cases of force majeure we are released from our obligation to perform. In such an event damage claims by the Buyer shall be excluded.

VIII. Liability

  1. According to the law we are liable, irrespective of the following liability limitations, for damages to life, body, and health, which are based on our deliberate or negligent breach of duty, breaches of duty by our legal representatives or vicarious agents and damages which are covered by the liability in accordance with the German Product Liability Act. For damages not covered by section 1 and which are due to an intentional or grossly negligent contract violation or malice on our the part or the part of our representatives or vicarious agents, we are liable according to the legal provisions. In such instances our liability shall be limited to the foreseeable damage typically occurring, provided that we or our legal representatives or vicarious agents have not acted deliberately.
  1. To the extent that we have given a quality or durability guarantee on goods or parts thereof, we are liable in accordance with this guarantee. For damages relating to the lack of the guaranteed quality or durability, which do not occur directly on the goods, we are liable only if the risk of such damage is obviously included in the quality or durability guarantee.
  1. We are also liable for those damages we cause in negligent violation of such contractual obligations whose fulfilment makes the orderly implementation of the contract possible in the first place, and whose breach jeopardises the achievement of the purpose of the contract, and on the observance of which the customer relies regularly. However, we are liable only if the damages are typically associated with the contract and can be anticipated.
  1. Any further liability is excluded irrespective of the legal nature of the asserted claim. Insofar as any liability of ours is excluded, the above shall also apply to our employees, representatives, agents and parties employed by us.
  1. Final Provisions
  2. Place of Performance and Court of Jurisdiction for both purchase orders and payments, including cheque and bill of exchange claims, as well as all disputes arising from contracts between us and a Buyer is our head office. We are also entitled to sue the Buyer at the court of their legal domicile or head office.
  1. The relationship between the seller and the client is exclusively subject to the law of the Federal Republic of Germany. Application of the UN Convention on Contracts for the International Sale of Goods is excluded.
  1. Customer data within the framework of our mutual business relationships shall be stored in accordance with the Federal law on data protection.