CGV COMMERCE

höfats GmbH, Albert-Einstein-Straße 6, 87437 Kempten

(1) All our deliveries, services and offers are subject to these General Sales and Delivery Conditions (hereafter also referred to as “General Conditions”). They form the basis for all contracts concluded between us, höfats GmbH, Albert-Einstein-Straße 6, 87437 Kempten (hereafter also referred to as „supplier“) and our contract partners (hereafter also referred to as „buyer“) for deliveries or services offered by us. They remain valid for all future deliveries, services or offers to the buyer, even if not separately agreed upon at another time.

(2) General terms or conditions of the buyer or third parties do not apply even if we do not specifically object to their validity in the individual case. Even if we refer to a letter by the buyer containing or referencing to the buyer’s or a third party’s terms and conditions, this does not constitute any agreement to the validity of such terms and conditions.

(1) All our offers are subject to change and without obligation unless they are explicitly marked as binding or contain a definite term of acceptance. Orders or contracts can be accepted by us within 14 days after receipt.

(2) All legal relations between us and the buyer are based on the written and signed contract, including these General Conditions. This contract contains in full any arrangements made between the parties relating to the subject matter. Any verbal commitment made before the signing of the contract is not legally binding, so that verbal agreements by the parties will be replaced by the written contract unless it is expressly stated therein that they shall continue to be binding.

(3) Amendments and modifications to the agreements made – including theses General Conditions – need to be in writing in order to be effective. With the exception of managing directors or authorized signatories, the supplier’s employees are not entitled to make any oral arrangements deviating from the content of this contract. The written form requirement shall also be deemed to be observed in case of transmittal by way of telecommunications, particularly by fax or e-mail, as long as it is a copy of the original signed statement that is being sent.

(4) All information provided by us with regards to the subject of the delivery or service (e.g., weight, measurements, utility values, capacity, tolerances, color details and technical data) as well as the illustration thereof (e.g., drawings and images) shall merely be approximations unless the use of the supplied item for the contractual purpose depends upon precise compliance. They are not guaranteed characteristics, but merely descriptions or labels of the delivery or service. Deviations considered trade customary, or deviations that are made to comply with legal regulations or that constitute technical improvements, as well as a component replacement by equivalent parts, are permissible as long as they do not impair usability for the contractually agreed purpose.

(5) The supplier reserves the ownership or copyright to all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and auxiliary means made available to the buyer. The buyer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties or reproduce them without our express consent. At the supplier’s request, the buyer shall return these items to him in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract, with the exception of the storage of electronically provided data for the purpose of usual data backup.

(1) The valid prices are those detailed in our order confirmation for the services and products mentioned therein. Additional or special services will be charged separately. All prices are in EUROS, ex works net and exclusive of packaging, statutory VAT and, in the case of export deliveries, customs duties and all fees and public charges.

(2) If the agreed prices are based on our list prices and the delivery is supposed to take place more than four months later than the date the contract was signed, the list prices valid at the time of delivery shall apply (each minus agreed percentage or fixed discount).

(3) Invoices are due and payable immediately without any deduction unless otherwise agreed in writing. The relevant payment date is the date the payment is received at our end. Checks will only be deemed as payment after having been cashed and paid into our account. If the buyer fails to pay on time, interest amounting to 9 percentage points per year above the basic rate of the European Central Bank shall be due from the day when the payment falls late. This does not compromise the enforcement of higher interest rates and further compensation in the event of default.

(4) The setoff against any counterclaims or the retention of payments by the buyer shall only be permissible as long as such counterclaims are undisputed and found to be legally binding.

(5) After the contract has been signed, we are entitled to execute outstanding deliveries or services only against advance payment or security deposit if we learn of circumstances suited to significantly deteriorate the buyer’s creditworthiness and which will jeopardize the payment of our open claims by the buyer pertaining to the relevant contract (including other individual orders which are part of the same framework contract).

(1) All deliveries are ex works.

(2) Delivery periods and delivery dates stated by us for deliveries and services are approximate unless a fixed deadline or a fixed date has been explicitly confirmed or agreed upon. If shipping is included in the signed contract, the date the goods are handed over to the forwarding agent, carrier, or any third party commissioned with the shipment counts as delivery date.

(3) We shall be entitled to demand from the buyer a prolongation of delivery or service deadlines - regardless of our rights arising from a possible default of the buyer – for the amount of time during which the buyer does not fulfil his contractual obligations towards us.

(4) We are not liable for the impossibility of delivery or for delays caused by force majeure or other events which could not be foreseen at the time the contract was signed (e.g. disruption of operations, difficulty in procurement of materials or energy, transportation delays, strikes, lawful lockouts, lack of workforce, energy, or raw materials, difficulty in obtaining official permits, official measures, or in the event of unfulfilled, incorrect or untimely delivery to ourselves by our suppliers, outbreaks of epidemics or pandemics) and for which we hold no responsibility. If such events make the delivery or service significantly more difficult or impossible and such impediment is not only temporary, we are entitled to withdraw from the contract. If, however, such impediment is only temporary, the terms of delivery or service shall be prolonged or the delivery or service dates shall be postponed by the same amount of time as the time of the impediment plus an appropriate start-up time. If, as a result of the delay, it would be unreasonable for the buyer to accept the delivery or service, he has the right to withdraw from the contract by means of immediate written notice.

(5) We are only entitled to partial deliveries if

– the partial delivery is useful to the buyer within the framework of the contractually agreed purpose
– the delivery of the remaining goods ordered is secured and
– this does not result in additional work and expenses for the buyer (unless we agree to take over such expenses).

(6) If we default in delivery or services or if a delivery or service becomes impossible due to any reason whatsoever, then our liability for damages as per § 8 of these General Conditions shall be limited.

(1) The place of fulfilment for all duties resulting from this contract is our registered place of business unless otherwise agreed. If we are obligated to provide installation on site, the place of fulfilment is the location of the installation.

(2) The means of transport and packaging are chosen at our discretion.

(3) The risk is passed on to the buyer, at the latest, from the moment the goods are handed over to the forwarding agent, carrier, or any authorized third party if the buyer has commissioned such forwarding agent, carrier or third party with the shipment of the goods, whereby the beginning of the loading procedure shall count. This also holds true if partial shipments are made or if we are carrying out additional services (e.g., shipping or installation). If the shipping or handing over is delayed due to circumstances caused by the buyer, the risk is passed on to the buyer on the day when the goods are ready to be shipped and we have informed the buyer accordingly.

(4) Storage costs arising after the transfer of risk are to be paid by the buyer. If the goods are to be stored by us, we will charge the buyer 0.25% of the invoice amount for the stored goods for each full week. We reserve the right to claim for additional storage costs or request proof of lower storage costs.

(5) We will only insure the shipment against theft and damage from breakage, transport, fire or water or any other insurable risk upon the buyer’s explicit request and at the buyer’s expense.

(6) If it was agreed that a formal acceptance needs to take place, the goods delivered are considered to be accepted from the moment that

– the delivery and, if we also owe the installation, the installation has been carried out,
– we have notified the buyer in writing of notional acceptance under article § 5 (6) and have requested the acceptance of the delivery within a reasonable period of time,
– 12 [twelve] working days have passed since the delivery or installation, or the buyer has started to use the delivered item (e.g., put the delivered equipment into operation), in which case 6 [six] working days have passed, and
– the buyer has failed to accept the delivery within this given time period for a reason other than a notified defect.

(1) The warranty period is one year from the time of handover or, if a formal acceptance is agreed, from the time of acceptance. This time limit does not apply to the buyer’s claims for damages on the grounds of injury to life, body or health, or wilful or grossly negligent conduct on the part of the supplier or his vicarious agents, each of which shall become statute-barred in accordance with the statutory provisions.

(2) The goods delivered must be carefully inspected immediately upon delivery by the buyer or a third party appointed by him. They are deemed to be approved by the buyer with regards to all obvious defects or other defects which could have been noticed in the event of an immediate and thorough inspection unless we receive a written notice of defects within 7 work days from the delivery date. With regards to other defects, the goods delivered are deemed to be approved by the buyer unless we receive a written notice of defects within 7 work days from the moment the defect becomes apparent; however, if such defect became apparent during the normal use of the goods at an earlier point in time, this earlier point in time shall count as starting date for the period of complaint. Upon our request, the defective goods are to be returned to us carriage free. In the case of a valid list of defects, we shall reimburse the buyer for the cost of the cheapest means of shipping; this shall not hold true if the cost rises because the goods need to be shipped from a different location than the location of intended use.

(3) In order to remedy such material defects of the goods delivered, we are free to choose between repair or replacement. Repair of the defective goods is considered to have failed after two unsuccessful attempts unless something to the contrary arises based on the nature of the item or of the defect, or on other circumstances. In the event of failure, i.e., the impossibility, unacceptability, refusal or inappropriate delay of the repair or replacement, the buyer has the right to either reduce the purchase price or to cancel the contract altogether.

(4) If a defect is due to our fault, the buyer is entitled to claims for reimbursement of expenses according to the regulations laid down in § 7.

(5) In case of defects in parts of other manufacturers which we are unable to remedy for reasons of fact or law, we shall have the choice to either claim warranty rights against the manufacturers and suppliers on the buyer’s account or to assign these rights to the buyer. Warranty claims towards us for such defects shall only be valid under the conditions of and based on these General Conditions if legal enforcement of such claims made against the manufacturer have proved to be unsuccessful or are deemed to be futile due to, e.g., bankruptcy. During the duration of any such legal proceedings, the statutory limitation of the buyer’s warranty rights towards us shall be suspended.

(6) The warranty shall not apply if the buyer modifies the delivery item or has it modified by a third party without the supplier’s consent, and the removal of the defect becomes impossible or unreasonably difficult as a result. In any case, the buyer shall bear the additional costs of remedying the defect resulting from the modification.

(7) If, in an individual case, the delivery of used goods has been agreed with the buyer, a warranty shall be excluded.

(1) The buyer shall respect our industrial property rights as well as our know-how.

(2) Any industrial property rights, including our know-how – in particular, our registered or unregistered designs – shall remain our sole property. Unless under obligation from provisions arising from applicable law or other written agreements, the buyer shall not be granted any rights to our industrial property rights or our know-how.

(3) In accordance with this § 7, the supplier guarantees that the delivered item is free from any third party’s industrial property rights or copyrights. Each party to this contract shall immediately notify the other party in case that claims are made against him from a violation of such rights.

(4) In case that the delivered item violates a third party‘s industrial property right or copyright, the supplier shall have the choice to modify or to exchange the delivered item at his expense in such a way that it still fulfils the contractually agreed function without infringing upon a third party’s rights, or shall procure the right of use for the buyer by concluding a license agreement. If the supplier fails to do so within a reasonable period of time, the buyer has the right to withdraw from the contract or to adequately reduce the purchase price. Any claims for damages of the buyer shall be subject to the limitations of § 8 of these General Conditions.

(5) In the event of infringements of rights by products of other manufacturers delivered by the supplier, the supplier, at his option, shall assert his claims against the manufacturers and upstream suppliers for the account of the buyer, or assign them to the buyer. In accordance with this § 7, claims towards the supplier in these cases shall only be valid if legal enforcement of such claims made against the manufacturer and upstream supplier have proved to be unsuccessful or are deemed to be futile due to, e.g., bankruptcy.

(1) Our liability for damages for whichever legal reason – in particular, for reasons of impossibility, delay, faulty or false delivery, breach of contract, breach of duties during contract negotiations, and tortious act - is limited in accordance with the provisions of this § 8 insofar as fault is relevant in each of these cases.

(2) We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents insofar as this does not involve a breach of material contractual obligations. Material contractual obligations are the obligation to deliver and install the delivery item with no substantial defects in due time as well as advisory, protective and custodial obligations which are intended to enable the buyer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the buyer's employees or to protect the buyer’s property from significant damage.

(3) Insofar as we are liable for damages on the merits in accordance with § 8 para. 2, this liability shall be limited to damages which we foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which we should have foreseen if we had exercised due diligence. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used for its intended purpose.

(4) In case of liability for simple negligence, the supplier’s obligation to compensate for material damage and further resulting financial loss is limited to an amount of EUR 10,000 € per case of damage, even if a material contractual obligation has been violated.

(5) Should we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done to the exclusion of any liability.

(6) The limitations of this § 8 do not apply to our liability on the grounds of willful or grossly negligent conduct, for guaranteed characteristics, due to injury to life, body or health, or to our liability under the product liability act.

(1) The buyer is aware of the fact that any electronic and unencrypted communication (e.g., by e-mail) is prone to security risks. Therefore, when this form of communication is used, the buyer shall refrain from making any claims based on a lack of encryption unless such encryption was previously agreed.

(2) The buyer shall, for an unlimited period of time, treat as confidential any and all information or information material (including, in particular, information on operational processes, business relations and know-how) of which the buyer becomes aware in conversation, in writing or in any other way, directly or indirectly, within the framework of the contractual relationship and which is designated as confidential or which, by its nature, is normally to be regarded as confidential, and shall use such information or material exclusively within the framework of the services covered by the respective contract. Excluded from this obligation to keep confidential is only such information or information material which

a) is already obvious at the time it becomes known, i.e., readily accessible to any third party,
b) is made available to a contracting party in a lawful way by a third party who is not obligated to maintain confidentiality towards the other contracting party,
c) must be disclosed to an authority or any other authorized third party at the latter's request.

(3) The buyer shall only grant access to confidential information to consultants who are subject to professional secrecy or who have previously been subject to obligations corresponding to the confidentiality obligations of this contract. Furthermore, the buyer shall only disclose confidential information to those employees who must know them for the purpose of execution of the respective contract, and, to the extent permitted by labor law, shall also oblige those employees to maintain confidentiality at any later point in time when they no longer work for him.

We process personal data within the scope of the execution of the order. The data processing is carried out in accordance with the statutory provisions. You can find further information on our data protection regulations here: https://hofats.com/Weitere-Infos/Datenschutz/.

(1) The goods delivered by us to the buyer remain our property until payment has been made in full. The goods as well as the items taking their place in accordance with this § 12 and covered by the reservation of title are hereinafter referred to as reserved goods.

(2) The buyer shall store such reserved goods for us free of charge.

(3) The buyer is under obligation to handle such reserved goods with care as long as ownership has not yet passed to him.

(4) If the reserved goods are processed by the buyer, it is agreed that the processing takes place in our name and on our account as manufacturers, and that we directly acquire ownership or - if the processing is carried out from materials by several owners or the value of the processed item is higher than the value of the reserved goods - fractional ownership of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on our part, the client shall already now transfer his future ownership or - in the aforementioned ratio - fractional-ownership of the newly created item to us as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, we shall, insofar as the main item belongs to us, transfer to the customer pro rata fractional ownership of the uniform item in the ratio specified in sentence 1.

(5) In the event of resale of the reserved goods, the buyer hereby assigns to us by way of security and with immediate effect the resulting claim against the purchasing party - in case of fractional ownership of the reserved goods, in proportion to the respective fraction. We hereby accept this assignment. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims in tort in the event of loss or destruction. Until revoked, we authorize the buyer to collect the claims assigned to us in his own name. We shall only have the right to revoke such authorization for collection in the event of enforcement of the reservation of title.

(6) If third parties take hold of the reserved goods, in particular by way of seizure, the buyer shall immediately make them aware of our ownership and inform us thereof in order to enable us to enforce our ownership rights. Should such third party be unable to reimburse us for the judicial or extrajudicial costs incurred in connection with any such action, the buyer shall be held liable by us.

(7) Upon request, we shall release the reserved goods and the items or claims replacing them if their value exceeds the amount of the secured claims by more than 10%.

(8) If we withdraw from the contract in the event of a breach of contract by the buyer (enforcement of the reservation of title), in particular due to default of payment, we shall be entitled to demand the return of the reserved goods.

(1) The contractual relations between us and the buyer shall be subject to the law of the Federal Republic of Germany exclusively. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

(2) The exclusive place of jurisdiction for all disputes arising from or in connection with this contractual relationship is Kempten, unless a different exclusive place of jurisdiction is stipulated. However, we are still entitled to sue the customer at another competent court.

March 24, 2021