§ 1 General (1) The Terms and Conditions of Business shall apply to all current and future business relations between Stefan Huml Design GmbH (SHD) and contracting parties (Customer) that are business establishments. Customers shall be natural or judicial persons or legally responsible partnerships with whom a business relationship is entered into and to whom a commercial or independent professional activity is imputed. Within the meaning of the General Terms and Conditions of Trade, Customers shall be legal persons under public law or special assets that are governed by public law. (2) Deviating, opposing or supplementary Terms and Conditions of Business of the Customer shall not form part of this agreement, even if SHD is aware of them.   § 2 Conclusion of Contract (1) All offers by SHD are non-binding. SHD reserves the right to make technical alterations as well as changes in form, colour and/or weight without prior notice, as long as these are reasonable. Documents, such as illustrations, drawings, and weight and mass specifications, that are associated with the offer shall only be considered to be influential insofar as they are not explicitly binding. SHD retains exclusive proprietorship of cost estimates, drawings and other documents; they may not be made available to third persons. (2) By placing an order, the Customer declares in a binding manner that he or she wishes to acquire the ordered goods. (3) SHD shall be entitled to accept the contractual offer contained in the order within four weeks of receiving it. Acceptance of an order may be declared in writing or by delivery of the goods to the customer. If the order is placed electronically, receipt of the order shall be confirmed immediately. However, confirmation of receipt shall not represent any binding acceptance of the order. Confirmation of receipt may be made in connection with the acceptance note. (4) The presentation of the products and services on the SHD’s website shall not represent a binding offer on conclusion of contract. (5) Conclusion of contract shall take place under reservation of correct and timely delivery by SHD’s supplier. This shall not apply in cases where non-delivery is not to be justified by SHD.   § 3 Exclusiveness SHD's products may only be presented for marketing purposes in catalogues, advertisements, TV commercials, the internet or comparable media or any kind of mail-order business after receiving explicit written permission by SHD.   § 4 Prices and Payment Terms (1) The prices shall be understood as ex-warehouse prices of SHD (according to INCOTERMS 2000 exw ex-works) excluding the statutory value added tax (VAT). (2) The Customer shall bear the shipping charges. (3) The purchase price shall be paid within 14 days of receipt of the reserved goods. After expiration of this term, the Customer shall be in default. (4) The punctuality of payment shall be determined by the date payment is received by SHD. (5) During the default period, the Customer must pay interest on the debt to the amount of 8 % above the basic interest rate stipulated by the ECB. In relation to the Customer, SHD reserves the right to provide evidence of greater default on payment and to assert claims in this respect. (6) Should wages, material costs or market-based purchase prices increase in the timespan between contract conclusion and the agreed delivery date, SHD shall be entitled to raise the price in accordance with the increase in costs. If the price increase is more than 5%, then the Customer shall be entitled to withdraw from the contract. (7) If the Customer revokes the contract in an unauthorised manner, then SHD may, notwithstanding the possibility of claiming higher damages, claim 10% of the sales prices for costs arising from the processing of the order and lost profits. The burden of proof for the occurrence of limited damage remains with the Customer. (8) SHD is entitled to request prepayment for delivery or cash on delivery (C.O.D.) or to request appropriate deposits for the purchase-money claims.   § 5 Retention of Title (1) SHD reserves ownership of the goods until all claims arising from the current business relationship have been satisfied. (2) As long as the goods are subject to the retention of title, the Customer shall be obliged to handle them with care. Should maintenance or inspection work be required, then the Customer must carry this out him- or herself, at his or her own expense, on a regular basis. (3) The Customer shall be obliged to inform SHD immediately in writing if any third party has access to the reserved goods (seizure, confiscation, etc.) and to inform the third party of the privileged property. The Customer must immediately inform the Seller in writing of any change of ownership, damage or destruction of the reserved goods or if he or she changes his or her own residence. (4) The Customer is entitled to resell the goods during the ordinary course of business. Already on conclusion of the contract, he or she shall assign to SHD all claims to the total of the invoiced amount arising to him through resale of the goods to a third party. SHD shall accept the assigning of these claims. Following assigning of the same the Customer shall be authorised to collect the claims. SHD shall reserve the right to collect the claims if the Customer does not comply with his or her payment obligations in accordance with the regulations and if he or she defaults on payment. In this case, SHD may demand that the Customer discloses the assignment of claims and the name of his or her customer, provides SHD with all information and associated documents that are required for collection of the claims, and informs his or her customer of the assignment of claims to SHD. (5) The processing and reshaping of the goods shall only occur on behalf of SHD. If the goods are processed or reshaped together with other objects not belonging to SHD, then SHD shall acquire proportionate co-ownership of the new product up to the value of the delivered goods in relation to the other processed or reshaped objects. The same applies if the reserved goods are mixed with other objects not belonging to SHD. (6) SHD is obliged to release the securities it is entitled to at the request of the Customer, provided these do not exceed 10% of the value of the claim to be secured. (7) In case of breach of contract by the Customer, especially in case of payment arrears or violation of his contractual obligations pursuant to Para. 2 and Para. 3 of this Section, SHD is entitled to demand the return of the goods and to withdraw from the contract. (8) SHD is entitled to insure the goods against theft, breakage, transportation, fire and water damages as well as other insurable risks at the expense of the Customer, provided that the Customer does not furnish proof of having taken out such insurance him- or herself.   § 6 Delivery Terms (1) The delivery period shall begin with the sending of the order confirmation, but not before the Customer has supplied all documents, authorisations, clearances as well as – if such an agreement exists – prepayment or the provision of a security. (2) The delivery terms will be deemed to have been complied with if the Customer is notified before expiration of the delivery term that the goods are ready for shipment. (3) The delivery period shall be extended if measures need to be taken in the context of labour disputes, including strikes and lock-outs in particular, as well as the occurrence of unforeseeable obstacles that are not under the influence of SHD, such as breakdowns, force majeure, official directives, delays in the supply of essential materials, insofar as these substantially affect the delivery of the goods. The delivery period shall be extended in proportion to the duration of such measures or obstacles; in important cases, the Customer shall be informed of the beginning and end of such circumstances without delay. These circumstances may not be taken into account by SHD, if they occur at a time when delivery is already delayed. (4) If, as a result of delayed delivery that is exclusively attributable to SHD's conduct, the Customer furnishes proof of damages caused by the delay, he or she may request compensation for the delay. Liability for damages will amount to 0.5% for each completed week of delay, up to a maximum total of 5 % of the net value of the relevant part of the entire delivery that could not be used as a consequence of the delay. This limitation of liability shall not apply in case of intent or gross negligence of SHD’s executive bodies or employees or, in exceptional cases, if adherence to the terms of delivery constitutes a substantial breach of contract. (5) Unless explicitly stated otherwise in writing, delivery dates shall not be understood as fixed dates.   § 7 Transfer of Risk and Acceptance of Goods (1) The risk of accidental destruction and the accidental deterioration of the goods shall be transferred to the Customer no later than on delivery of the goods (according to INCOTERMS 2000 ex-works), also if there has only been a partial delivery and SHD has also taken over other performances e.g. shipping costs or carriage and installation. Delivery shall be insured against theft, breakage, fire and water damages by SHD on the Customer's request and at his or her expense. (2) Should acceptance of the goods not occur within 14 days of receipt of the notification of readiness for dispatch, SHD may inform the Customer in writing, combined with an explanation, that acceptance of the goods will be refused after this period. Following the unsuccessful delivery during this lapse of this time, SHD shall be entitled to withdraw from the contract or to request compensation for damages on the basis of non-fulfilment of contractual obligations. The provision of goods or granting of additional respite becomes superfluous if the Customer earnestly and definitively refuses acceptance of the goods and is manifestly not able to pay the purchase price. Should SHD wish to claim compensation for damages, then the extent of compensation shall be in accordance with the aforementioned regulations stipulated in Clause 4 Para.7. (3) Delivered goods shall be accepted by the Customer, even if they display marginal defects, irrespective of the rights stipulated in Clause 8. (4) Partial deliveries are not permissible.   § 8 Warranty (1) If a defect is found, SHD can choose to either rectify the defect or supply a replacement. (2) If the defect could not be rectified or no replacement made, the customer may choose either to reduce the payment (price reduction) or to cancel the contract (withdrawal). However, the Customer is not entitled to withdraw from the contract if there are only minor deviations from the agreed upon goods condition or, in particular, if there are only minor defects. (3) Claims for clearly visible defects are to be made within two weeks of receipt of the goods; should they not do so, then any assertion of claims for compensation shall be excluded. Dispatching in good time shall suffice where observation of the deadline is concerned. The whole burden of proof shall rest on the Customer where all prerequisites for claims are concerned, in particular were the defect itself, the time when the defect was discovered and the punctual sending of the notice of defects are concerned. (4) Should the Customer decide to withdraw from the contract due to a defect and following unsuccessful fulfilment, then he or she shall not be entitled to any claims for compensation as a result of the defect. If, after unsuccessful subsequent fulfilment, Customer chooses to claim for compensation, then he or she shall retain the goods if this appears reasonable to him or her. The level of compensation shall be limited to the difference between the purchase price and the value of the defective goods. This does not apply if the contract was breached in a malicious manner by SHD or if SHD has offered a guarantee for the condition of the goods. (5) Irrespective the regulations in Para. 3 and deviating from those of Section 438 Para.1 of the German Civil Code, the warranty period shall be one year for moveable goods. This does not apply for goods that are commonly used for construction and if this has been the cause of the defect. (6) The condition of the goods shall in principle only be considered as that given in SHD’s product description and as contractually agreed upon. Public statements, recommendations or advertising shall not be considered as representing the provision of details relating to the condition of the goods, in accordance with the terms of the contract. (7) Should the Customer receive an unsatisfactory assembly manual, then SHD shall only be obliged to deliver an assembly manual free of defects and this only if the unsatisfactory assembly manual prevents proper assembly. (8) No guarantee will be provided for the unsuitable and improper use, incorrect installation or commissioning, natural wear and tear, improper or negligent handling as well as physical, chemical or other comparable influences, as long as these are not the fault of SHD. Should the Customer not observe the instructions in the SHD operating and maintenance manual, undertake improper modifications of the delivered goods, exchange parts or use consumables that do not correspond to the original SHD specifications, then any claims for defects by the Customer shall be excluded, if he or she is not able to disprove his or her substantiated statement that the defect was caused by one of these circumstances. (9) Any claims for defects against SHD shall only be due to the Customer directly and may be assigned to third persons. (10) If the Customer receives requests for remedying a defect from his or her customer, then he or she shall notify SHD immediately and to consider the possibility of undertaking the rectification him- or herself. (11) If no warranty claim exists, then the labour costs incurred in connection with the asserted defects, and SHD’s standard rates for working hours and travel expenses shall be borne by the Customer.   § 9 Industrial Property Rights (1) If any of the goods delivered breaches the industrial property rights of a third party, then SHD shall initially be entitled either to correct the deficiency in title by taking out a new license or to modify the goods or partial goods in such a way that there is no longer a breach of industrial property rights, and to the extent that this does not infringe upon the contractually stipulated use of the goods or do away with their normal function, so that the goods no longer possess the contractually agreed qualities. (2) SHD is not liable for the infringement of third party industrial property rights, if the goods delivered were manufactured according to the designs, plans or other specifications of the Customer. (3) SHD is not liable for the infringement of third party industrial property rights that only came into existence in combination, or through the processing or use of other products. (4) The Customer is obliged to notify SHD of any infringements of industrial property rights without undue delay. (5) For the rest, Clause 9 applies.   § 10 Replacement Parts After the transfer of risk, SHD shall supply replacement parts for the goods for a period of five years at the respectively applicable prices.   § 11 Liability (1) Where slightly negligent violations of duties are concerned, SHD’s liability shall be limited to the average foreseeable, direct damage, typical to contract. This also applies to slightly negligent violations of duties of SHD’s legal representatives or vicarious agents. SHD shall not be liable for slightly negligent violations of insignificant contractual obligations. (2) Claims for compensation made by the Customer due to a defect shall expire one year after delivery of the goods. This shall not apply if SHD is being reproached for malicious behaviour or for a guarantee relating to the nature of the goods. (3) The limitations of liability stipulated in the preceding paragraphs shall not affect claims arising from product liability. Furthermore, this shall not apply with regard to physical injury and injury to health or loss of life on the part of the Customer.   § 12 Offsetting/Right of Retention (1) Offsetting against purchase money-claims is only permissible if the claims are undisputable or if they have been established to be legally enforceable. (2) The Customer shall not be only entitled to a right of retention for claims that do not concern the contract of purchase.   § 13 Place of Jurisdiction / Applicable Law (1) The exclusive place of jurisdiction for all disputes arising from the contractual agreement shall be the headquarters of SHD. The same shall apply if the Customer has no general place of jurisdiction within Germany or if his or her residence or customary abode is not known at the time legal proceedings are instituted. (2) The laws of the Federal Republic of Germany shall exclusively apply with regard to the legal relations between SHD and the Customer. This applies both to the conclusion of contract and to its fulfilment. The provisions of the United Nations Convention on Contracts shall not apply. (3) The delivery goods shall be constructed, manufactured and installed in accordance with the applicable statutory provisions of the Federal Republic of Germany. Should the Customer wish to deviate from these, then he must communicate this when placing the order. If there are any discrepancies between the German and the English versions of the provisions, the Customer shall inform SHD of this in writing. SHD reserves the right to adapt the prices and the delivery date in order to fulfil the Customer's wishes. (4) Should individual provisions contained in the contract with the Customer, including these General Terms and Conditions of Business, be or become wholly or partially ineffectual, then the validity of the remaining provisions shall not be affected as a result. In this case, the contractual parties shall be obliged to replace the ineffectual provision by a provision that comes as close as possible to the legal and economic purpose of the contract.