General Terms and Conditions of ZewaTec Automation GmbH

1. Validity of the Terms and Conditions

1.1 All offers, business transactions, and deliveries by ZewaTec Automation GmbH (hereinafter referred to as ZewaTec) are made exclusively on the basis of these General Terms and Conditions. These therefore also apply to all future contacts, even if they are not expressly agreed again.

1.2 These General Terms and Conditions of ZewaTec apply solely. Any existing terms and conditions of purchase of the client shall not apply unless ZewaTec has expressly agreed to their validity.

1.3 Should one or more provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.

2. Conclusion of contract

2.1 Offers made by ZewaTec are binding for a maximum of one week.

2.2 ZewaTec employees are not authorized to make verbal side agreements or give verbal assurances that go beyond the content of a written offer or a written contract.

2.3 A contract is concluded when it is either confirmed in writing by ZewaTec or executed immediately after receipt of the order or on schedule. In this case, the invoice shall be deemed to be the order confirmation.

3. Prices

3.1 All prices quoted in ZewaTec’s offers are net prices, to which VAT and other mandatory charges applicable at the time of invoicing shall be added.

3.2 Unless otherwise agreed, prices are understood to be ex works ZewaTec plus freight, postage, packaging, and insurance.

3.3 If the customer withdraws from an order, they are obliged to pay for the work already performed by ZewaTec.

4. Deliveries

4.1 Delivery dates are only approximate guidelines for ZewaTec’s deliveries and services. They shall be deemed to have been agreed upon receipt of the order confirmation by the customer.

4.2 Delivery delays due to force majeure, strikes, unforeseeable operational disruptions, delays in delivery by upstream suppliers, transport bottlenecks, raw material shortages, official measures, and other circumstances beyond ZewaTec’s control release ZewaTec from its delivery obligation for the duration of their occurrence and justify an appropriate change to the delivery dates. In such cases, the client is entitled to refuse acceptance of the delayed deliveries after a reasonable grace period has expired. Furthermore, the contractor shall have no claims against ZewaTec in the aforementioned cases.

4.3 In the event of a delay in performance or the impossibility of performance for which ZewaTec is responsible, any claim for damages due to non-performance to which the buyer may be entitled in accordance with §§ 325, 326 BGB (German Civil Code) shall be limited to compensation for foreseeable damage only. The above limitation of liability shall not apply if the reason for the delay in performance or the impossibility of performance is based on intent or gross negligence on the part of one of ZewaTec’s legal representatives or vicarious agents.

4.4 ZewaTec is entitled to deliver contractual services in partial quantities. The client is obliged to accept and pay for such partial quantities.

5. Defects and Warranty

5.1 The contractor must immediately inspect deliveries received for quantity and quality. Obvious defects or incorrect quantities must be reported in writing on the receipt or immediately after receiving the goods. Defects that were not apparent during the initial inspection must be reported in writing immediately after their discovery.

5.2 In the event of reductions or defective goods, ZewaTec shall, as quickly as possible taking delivery options into account, make subsequent or replacement deliveries to the extent necessary to compensate for shortfalls and replace defective parts of the delivery. The customer is obliged to accept a partial quantity or the non-defective parts of the delivery as well as to accept the replacement or substitute delivery. If the replacement or substitute delivery does not result in a complete or defect-free overall performance by ZewaTec, the customer is entitled, at its option, to withdraw from the contract or to demand a corresponding reduction in the purchase price.

5.3 Unless otherwise specified below, further claims by the customer – regardless of their legal basis – are excluded. ZewaTec is therefore not liable for damage that is not inherent in the delivered goods themselves. In particular, ZewaTec shall not be liable for lost profits or other financial losses incurred by the customer. The above exclusion of liability shall not apply if the cause of the damage is based on intent, gross negligence, or ZewaTec’s culpable breach of a material contractual obligation or injury to life, limb, or health. The disclaimer of liability shall also not apply if the customer is entitled to assert claims for damages for non-performance in accordance with Sections 463, 480 (2) of the German Civil Code (BGB) due to a defect in a warranted characteristic.

6. Place of Performance and Transfer of Risk

6.1 Regardless of the destination of the delivery, the place of performance shall be the location of ZewaTec’s distribution center.

6.2 The risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer upon handover to the customer or the carrier. This shall also apply if ZewaTec places the transport order for the customer or carries out the transport itself. It is the responsibility of the customer to take out insurance covering the aforementioned risk.

6.3 If the customer is in default of acceptance, the risk of accidental loss or accidental deterioration of the purchased goods shall pass to the customer after three working days following dispatch of the notification of readiness for shipment.

7. Payment

7.1 In the absence of any agreement to the contrary, all invoices shall be settled by the customer without deduction within 30 days of the invoice date by cashless means. Discount deductions are not permitted.

7.2 ZewaTec reserves the right to accept bills of exchange on a case-by-case basis. Where applicable, bills of exchange and checks will only be accepted subject to redemption. Bank charges and fees, return debit and processing costs shall be borne by the customer.

7.3 If the client defaults on the payment of an invoice, all outstanding claims of ZewaTec, including any claims from bills of exchange, shall become due immediately, regardless of the agreed payment dates. In addition, ZewaTec shall be entitled to postpone any outstanding deliveries until all outstanding invoices have been paid and to demand advance payment for these. The same applies if ZewaTec becomes aware of circumstances that call into question the creditworthiness of the customer.

7.4 Offsetting against counterclaims of the customer is generally not permitted, unless such counterclaims are due and undisputed or have been legally established.

7.5 The customer shall only be entitled to a right of retention with regard to payments relating to the individual order from which it asserts warranty claims or similar.

7.6 ZewaTec is entitled to assign claims arising from the business relationship with the client at any time.

8. Retention of Title

8.1 All deliveries and services are subject to retention of title. Ownership shall only pass to the customer once they have fulfilled all their obligations to ZewaTec under the respective purchase agreement. Retention of title shall also remain in force as long as the bills of exchange or checks provided as security have not been fully honored.

8.2 In the event that the goods delivered under retention of title are combined or mixed with an item belonging to the customer or a third party, ZewaTec shall acquire proportional co-ownership of the new item in place of the customer or the third party, in proportion to the purchase price of the combined item to the value of the new item.

8.3 In the event of the processing or treatment of the goods delivered under retention of title, ZewaTec shall be the manufacturer within the meaning of the law, but without assuming any manufacturer’s obligations. ZewaTec shall be entitled to proportional co-ownership of the new item in the ratio of the purchase price of the processed or treated item to the value of the new item.

8.4 The customer is authorized to resell the goods delivered under retention of title in the ordinary course of business. It hereby assigns to ZewaTec in advance the first-ranking portion of its claims from justified and unjustified resale, which corresponds to the invoice price (including VAT) of the goods delivered by ZewaTec. The names and addresses of the customers and the amount of the respective claims must be communicated to ZewaTec upon first request. The customer is authorized to collect the claims assigned to ZewaTec as long as he duly meets his payment obligations to ZewaTec and ZewaTec does not revoke this authorization for any other reason. ZewaTec accepts the advance assignments regulated in this provision.

8.5 Until the goods delivered under retention of title or the new item created by combination, processing, or treatment have been properly utilized, the customer shall store them separately from other items. The customer shall bear all costs and expenses necessary for their preservation during this period and shall be liable to ZewaTec for any deterioration. The goods shall be adequately insured against damage, loss, and destruction.

8.6 Any pledging or transfer by way of security of the purchased goods or the new item created is not permitted. The customer must immediately notify ZewaTec of any seizures or other encumbrances on ZewaTec’s property by third parties and take appropriate measures to prevent them. If ZewaTec has reason to protect its rights to the delivered goods by bringing a third-party action pursuant to §771 ZPO (German Code of Civil Procedure), the customer shall be liable for the resulting judicial and extrajudicial costs, insofar as the defendant is unable to reimburse them.

8.7 In the event of breach of contract by the customer, in particular in the event of default in payment, ZewaTec shall be entitled to take back the delivered goods. The taking back of the goods does not constitute a withdrawal from the contract, unless ZewaTec expressly declares this.

8.8 ZewaTec agrees to release any securities that may exist at the request of the customer to the extent that the realizable value of these securities exceeds the claim to be secured by more than 20%; ZewaTec shall decide which securities are released in each individual case.

9. Data Protection

9.1 ZewaTec customer data will be stored and processed electronically to the extent necessary for business purposes and permitted under the Federal Data Protection Act (§ 28 BDSG).

10. Liability for Fault

10.1 ZewaTec shall only be liable for damages resulting from culpable breaches of contract or fault during contract negotiations in cases of intent or gross negligence on the part of its legal representatives or vicarious agents. In the event of injury to life, limb, health, or a material contractual obligation, ZewaTec shall also be liable for slight negligence, but only for compensation for typical foreseeable damage.

10.2 The above limitation of liability also applies to tortious claims for damages. It does not apply to claims pursuant to Sections 1 and 4 of the Product Liability Act or in the event of initial inability to perform.

10.3 Insofar as ZewaTec’s liability is excluded or limited, this also applies to the personal liability of ZewaTec’s employees and other vicarious agents.

11. Applicable Law

11.1 The legal relationship between the contracting parties shall be governed exclusively by German law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

12. Place of Jurisdiction

12.1 If the contractual partner is a merchant within the meaning of the law, Hamburg shall be agreed as the place of jurisdiction for all mutual claims arising from the contractual relationship.

March 2011
ZewaTec Automation GmbH