Oberhaizinger
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General Terms and Conditions of Sale of Oberhaizinger Group

§ 1 Scope of application
  1. These General Terms and Conditions of Sale of Goods (“GTC”) shall apply to any and all business relations between Oberhaizinger Group, currently comprising, in particular,
    – Oberhaizinger GmbH,
    – Oberhaizinger Corporate Design GmbH,
    – ISARIA Corporate Design GmbH,
    and our clients (“Buyer”).
  2. Our GTC shall only apply in the event that the Buyer is a trader (as defined by Section 14 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”)), a legal entity under public law or a special fund under public law.
  3. Our GTC shall only apply, in particular, to contracts to sell and/or deliver movable objects (the “goods”), irrespective of whether we manufacture the goods ourselves or buy the goods from suppliers (Sections 433, 650 of the BGB). Unless otherwise agreed upon, these GTC, as applicable at the time of the Buyer’s order or, in any case, as last submitted to the Buyer in text form, shall also apply as a framework contract to similar future contracts, without any need for us to refer to them again in each individual case.
  4. Our GTC shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the Buyer shall become an integral part of the contract only if and to the extent we have expressly approved of their applicability in text form. The Buyer’s approval shall be required in any case, even, for example, if the Buyer refers to its own general terms and conditions in the order and if we do not expressly object to them.
  5. Any individual agreements (such as framework supply contracts, quality assurance contracts) and statements included in our confirmation of the order shall prevail over these GTC. Any trade terms shall be interpreted in case of doubt in accordance with the Incoterms published by the International Chamber of Commerce in Paris (ICC), as applicable at the time of the conclusion of the contract.
  6. Any legally relevant declarations and notifications made by the Buyer in relation to the contract (e.g., setting of deadlines, notification of defects, withdrawal or reduction) must be made in text form. Any legal formalities and other verifications shall not be affected thereby, in particular, if there are doubts about the authority of the person making the declaration.
  7. Any reference to the applicability of statutory provisions is only made for the purpose of clarification. Hence, such statutory provisions shall apply even without such clarification unless they are directly amended or expressly excluded by these GTC.
§ 2 Conclusion of the contract
  1. The Buyer’s order shall be deemed a binding offer to enter into a contract. We shall be entitled to accept this offer to enter into a contract within four weeks after we have received such offer unless otherwise stated in the order.
  2. Acceptance may be declared either in text form (e.g., by means of a confirmation of the order) or by delivering the goods to the Buyer.
§ 3 Documents, title and copyright
  1. Any documents such as illustrations, drawings, plans and dimension specifications are only approximate indications unless they are expressly designated as binding.
  2. We reserve title to and copyright in cost estimates, drawings and other documents. Such documents must not be used for purposes other than those specified in the contract, in particular they must not be reproduced or made accessible to third parties without our prior written consent.
  3. Any such documents must be returned to us immediately upon request. There shall be no right of retention with regard to these documents.
  4. Proofs and type samples must be checked for errors and approved by the Buyer. The Buyer is expressly advised to check the samples carefully. We shall only be liable for any deviations caused by gross negligence or intent; any changes made by telephone must be confirmed by us in text form.
  5. The Buyer shall adequately insure the manuscripts, originals, samples, plans, papers, etc. handed over to us against theft, fire, water and any other danger at its own expense. We shall only be liable for their loss or damage in cases of gross negligence or intent.
§ 4 Date of delivery, default in delivery
  1. The date of delivery shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the date of delivery shall be four months from conclusion of the contract.
  2. If and to the extent we are not able to meet binding delivery dates for reasons for which we are not responsible (unavailability of service), we will notify the Buyer thereof without undue delay and inform the Buyer of the expected new date of delivery. If we cannot perform within the new delivery period, we shall be entitled to fully or partially rescind the contract; we will refund any payments already made by the Buyer in this case. Non-availability of the service shall be deemed to exist, for example, in the event of late delivery by our supplier, if we have concluded a congruent covering transaction, in the event of other disruptions in the supply chain, for example, due to force majeure, if the sample inspection has not been approved by the Buyer, or if we are not obligated to procure the goods in individual cases.
  3. Any default in delivery on our part shall be governed by the statutory provisions. However, a reminder from the Buyer with a grace period of at least 15 working days shall be required, in any case.
  4. A delay in delivery on our part shall only occur if and to the extent the Buyer has fulfilled its obligations to us in a timely and proper manner.
  5. The rights of the Buyer pursuant to clause 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 5 Delivery, passing of risk, reception, acceptance and default in acceptance
  1. Delivery is made from the warehouse, which shall also be the place of performance for the delivery and supplementary performance, if applicable. At the request and expense of the Buyer, the goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed upon, we shall have the right to determine the type of shipment (in particular the transport company, shipping route, packaging) ourselves.
  2. The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer no later than upon the handover of the goods to the Buyer. In the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration, as well as the risk of delays shall, however, already pass upon the delivery of the goods to the forwarding agent, the carrier, or other person or institution entrusted with the shipment, even if partial deliveries are made or if we have undertaken other services, such as installation.
  3. Insofar as acceptance has been agreed upon or is owed, the risk shall pass upon acceptance. Apart from that, the statutory provisions under the law on contracts for work and services shall apply correspondingly to any agreed acceptance. Delivery and/or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
  4. The goods will only be insured for transport by us at the Buyer’s instruction in text form and at the Buyer’s expense.
  5. We usually plan and assign delivery or assembly dates four weeks in advance. If the Buyer cancels an already agreed delivery or assembly date without fault on our part or on the part of our subcontractors, the Buyer shall bear the following flat-rate cancellation costs:
    – Cancellation up to 5 working days before the start of assembly: 100% of the estimated assembly costs
    – Cancellation up to 10 working days before the start of assembly: 50% of the estimated assembly costs
    – Cancellation up to 15 working days before the start of assembly: 15% of the estimated assembly costs
  6. Should the Buyer cancel the order in accordance with paragraph (5) above and has the material to be put into storage, we may charge an additional flat-rate storage fee of 2% of the order value for each month (or pro rata temporis if applicable). The Buyer shall be entitled to prove that we have not incurred any damage or that the damage incurred is significantly lower. We shall be entitled to prove that we have incurred higher damage.
  7. In addition to the flat-rate cancellation costs and storage fees specified in paragraphs (5) and (6) above, we expressly reserve the right to claim further damages up to a maximum of the order value.
  8. In the event of cancellation of an already agreed delivery or assembly date in accordance with paragraph (5), the Buyer shall be entitled to request that we agree on a replacement delivery or assembly date. The Buyer shall not be entitled to a specific date or a specific period within which the replacement delivery or assembly date must take place; however, the Buyer shall be entitled to priority treatment within the available capacities. Such date must be confirmed by us in text form, otherwise the date shall not be binding for us.
  9. If, according to the contract, delivery or assembly is to take place on several days and the Buyer cancels only one or some of the days, any agreed completion date shall no longer be binding. Consecutive delivery or assembly dates shall be postponed uniformly in consultation with the Buyer.
  10. If performance is interrupted for a period of more than one month without the service becoming permanently impossible, we shall be entitled to invoice the services already performed at the contract prices. In this case, we shall also be entitled to invoice the costs already incurred by us, even if they relate to services not yet performed. The Buyer shall bear the costs of clearing the construction site and, in addition, the costs of any necessary temporary storage, insofar as these are not already included in the remuneration for the services performed.
§ 6 Reservation of title
  1. We reserve title to the sold goods until full payment of any and all present and future outstanding claims under the business relationship (secured claims).
  2. Any goods being subject to a reservation of title may neither be pledged to a third party nor provided as security until full satisfaction of the secured claims. The Buyer must inform us immediately in writing if a petition to open insolvency proceedings is filed or if third parties seize our goods (e.g., attachments).
  3. Should the Buyer violate the contract, particularly by not paying the purchase price due, we shall be entitled to rescind the contract in accordance with the statutory provisions and/or to request the return of the goods on the basis of the reservation of title. The demand for surrender does not simultaneously include a declaration of withdrawal; rather, we shall be entitled to demand only the return of the goods and to reserve the right to withdraw from the contract. If the Buyer fails to pay the purchase price due, we shall be entitled to exercise such rights only if we have set a reasonable deadline for payment which has expired without results unless the setting of such deadline is not required under statutory provisions.
  4. Until revocation in accordance with lit. c) below, the Buyer shall be entitled to resell and/or process the goods being subject to a reservation of title in the ordinary course of business. In this case, the following provisions shall apply additionally:
    a) Title extents to the full value of any products resulting from the processing, mixing or combination of our goods, provided that we are considered to be the manufacturer. If our goods are processed, mixed or combined with third-party goods and if title to such goods remains with the third party, we shall obtain joint title pro rata in proportion of the sums invoiced for the processed, mixed or combined goods. In other respects, the same shall apply to the resulting products as applies to the delivered goods being subject to a reservation of title.
    b) The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or products, either in full or in the amount of the co-ownership share pursuant to the above paragraph. We accept the assignment. The Buyer’s obligations set forth in paragraph (2) shall also apply in consideration of the assigned claims.
    c) The Buyer shall remain authorised to collect the sum due alongside us. We undertake not to collect the sum due as long as the Buyer meets its payment obligations to us, there is no deficiency in the Buyer’s ability to pay, and we do not assert our reservation of title by exercising a right in accordance with paragraph (3). However, should this be the case, we may request the Buyer to inform us about the assigned claims and the respective debtors, to furnish any and all information required to collect the sum due, to deliver the related documents, and to notify the debtors (third parties) of the assignment. In addition, we shall be entitled in this case to revoke the Buyer’s authority to resell and process the goods subject to the reservation of title.
    d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.
§ 7 Prices, right of set-off and right of retention
  1. Unless otherwise agreed upon in individual cases, our prices valid at the time of the conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
  2. In the case of sale by delivery to a place other than the place of performance (clause 5(1) sentence 2), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
  3. The agreed remuneration shall be due and payable within 7 calendar days of the invoice date unless otherwise agreed upon. We shall be entitled at any time to make a delivery in whole or in part only against advance payment.
  4. The Buyer will be in default upon expiration of the aforementioned payment term. During the period of default, the remuneration shall bear interest at the rate of the applicable statutory default interest. We reserve the right to assert claims for further damage caused by default. In the relationship with businesspeople, our claim for commercial interest for due payments (Section 353 of the German Commercial Code (Handelsgesetzbuch – “HGB”) shall remain unaffected.
  5. The Buyer shall only have a right of set-off or retention if its claims have been found to be final and absolute or undisputed. In the event of defects in the delivery, the Buyer’s counterclaims shall remain unaffected, in particular in accordance with clause 8(4) sentence 2 of these GTC.
  6. If, after conclusion of the contract, it becomes apparent (e.g., through the filing of a petition for the opening of insolvency proceedings) that our claim for remuneration is at risk due to the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and, if necessary, to withdraw from the contract after setting a deadline (Section 321 of the BGB). In the case of contracts for the manufacture of non-fungible goods (unique products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
  7. If the fulfilment of the contract (delivery, etc.) is delayed by more than six months for reasons beyond our control, we shall be entitled to pass on to the Buyer any significant price increases for materials, wages and salaries, energy, storage and shipment costs that have occurred in the meantime.
§ 8 Buyer’s claims based on defects
  1. The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery and improper assembly/installation) unless otherwise specified below.
  2. We are, in principle, not liable for any defects of which the Buyer has knowledge at the time of conclusion of the contract or has no knowledge due to gross negligence (Section 442 of the BGB). Furthermore, the Buyer’s claims based on defects are conditional upon the Buyer having fulfilled its statutory obligations to inspect the goods and to notify us (Sections 377, 381 of the HGB). In the case of building materials and other goods intended for installation or further processing, an inspection must be carried out immediately prior to processing in any case. The Buyer must notify us of any defects identified during delivery, inspection or at any later point in time in text form without undue delay. In any case, all obvious defects must be reported in text within three working days of delivery, and any defects that are not apparent upon inspection must be reported within the same period of time after discovery. Obvious defects sustained during transport must be noted on the consignment note. If the Buyer fails to carry out the proper inspection and/or make notification of defects, our liability for defects that are not reported, or not reported in a timely or proper manner, shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation, attachment or assembly, this shall also apply if the defect only becomes apparent after processing as a result of a breach of one of these obligations; in this case, the Buyer shall have no claims for reimbursement of corresponding costs (“removal and installation costs”).
  3. If the goods are defective, we may first choose whether to remedy the defect (repair) or deliver a replacement item free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in individual cases, the Buyer may reject it. Our right to refuse subsequent performance under the legal prerequisites shall remain unaffected.
  4. We shall be entitled to make subsequent performance owed dependent upon the Buyer paying the remuneration due. The Buyer shall, however, be entitled to retain a portion of the remuneration commensurate with the defect.
  5. Subsequent performance does neither include the removal, dismantling or uninstallation of the defective item nor the installation, fitting or assembly of a non-defective item if we were not originally obligated to provide these services.
  6. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, road, labour and material costs, as well as any removal and installation costs, in accordance with the statutory provisions and these GTC if a defect actually exists. Otherwise, we shall have the right to demand reimbursement from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect if the Buyer knew or could have recognised that there was in fact no defect.
  7. The Buyer shall not be entitled to any claims for reimbursement of expenses pursuant to Section 445a(1) of the BGB unless the last contract in the supply chain is for the sale of consumer goods (Sections 478, 474 of the BGB) or a consumer contract on the supply of digital products (Sections 445c sentence 2, 327(5), 327u of the BGB). The Buyer shall also only be entitled to any claims for damages or reimbursement of futile expenses (Section 284 of the BGB) in the event of defects in the goods in accordance with clauses 9 and 10 below.
§ 9 Other liability
  1. Unless otherwise provided for by these GTC, including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
  2. We shall be liable for damages – regardless of the legal ground – within the scope of fault-based liability in cases of intent and gross negligence. In cases of ordinary negligence, we shall be liable, subject to the statutory limitations of liability (e.g., diligence in our own affairs; insignificant breach of duty), only
    a) for damage resulting from an injury to life, body, or health,
    b) for damage resulting from a breach of a material contractual duty (a duty the compliance of which makes the proper execution of the contract possible in the first place and on which the contracting partner regularly relies and may rely); however, in this case, our liability shall be limited to the compensation of the foreseeable, typically caused damage.
  3. The limitations of liability resulting from paragraph (2) above shall also apply to third parties and in the event of breaches of duty by persons (including for their benefit) for whose fault we are responsible in accordance with the statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods and to any claims of the Buyer under the German Product Liability Act (Produkthaftungsgesetz).
  4. The Buyer may only withdraw from the contract or terminate the contract due to a breach of duty that does not constitute a defect if we are responsible for the breach of duty. The Buyer’s unrestricted right to terminate the contract (in particular in accordance with Sections 650, 648 of the BGB) shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 10 Statute of limitations
  1. Notwithstanding Section 438(1)(3) of the BGB, the general limitation period for claims arising from material defects and defects of title – with the exception of buildings, with regard to which the statutory provisions shall apply – shall be one year from delivery. If and to the extent acceptance has been agreed upon, the limitation period shall commence upon acceptance.
  2. Other special statutory provisions on the limitation period (in particular Sections 438(1)(1), 76(3), Sections 444, 445b of the BGB) shall remain unaffected.
  3. The aforementioned limitation periods under sales law shall also apply to any contractual and non-contractual claims for damages of the Buyer based on a defect in the goods unless the application of the standard statutory limitation period (Sections 195, 199 of the BGB) would lead to a shorter limitation period in individual cases. Any claims for damages of the Buyer pursuant to clause 9(2) sentences 1 and 2a) and pursuant to the German Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
§ 11 Choice of law and place of jurisdiction
  1. These GTC and the contractual relationship between us and the Buyer shall be subject to the laws of the Federal Republic of Germany without giving effect to the international uniform law provisions, particularly the UN Sales Convention.
  2. In the event that the Buyer is an entrepreneur as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for any and all disputes arising directly or indirectly from the contractual relationship shall be the place of our registered office. This shall also apply in the event that the Buyer is a trader as defined by Section 14 of the BGB. However, we shall also be entitled in any case to bring an action at the place of performance of the obligation to deliver in accordance with these GTC or an overriding individual agreement or at the Buyer’s general place of jurisdiction. Any overriding statutory provisions, particularly on exclusive jurisdiction, shall remain unaffected.
§ 12 Severability
  1. The invalidity of individual provisions of these GTC shall not affect the validity of the remaining provisions hereof.
  2. Should any provision of these GTC be invalid, such invalid provision shall be replaced by a provision which the parties would have agreed upon after due consideration of their mutual interests if they had been aware of the invalidity.