Terms &  Conditions

General Terms and Conditions of ViaBlue GmbH

1. Scope

1.1. All offers, deliveries and services by us shall be made solely on the basis of these General Terms and Conditions. The General Terms and Conditions form part of all contracts between us and the customer. They also apply to all future deliveries, services or offers, even if they are not agreed again separately.

1.2. Any terms the customer may have which are in conflict with or differ from our General Terms and Conditions shall not apply, even if we do not specifically object to their validity in the individual case. Our General Terms and Conditions shall also apply if we perform the delivery to the customer without any reservations in spite of knowing of the conflicting terms and conditions.

2. Contract conclusion

2.1. Our offers are directed exclusively to companies and are always without obligation and binding provided they have not explicitly been marked as binding. Our specifications on the object of the delivery or service especially with regard to the product quality, these, as well as the representations of the same (e.g. drawings and illustrations) are only approximately applicable, unless its applicability for the contractually agreed purpose requires precise conformity. These are not guaranteed characteristics but descriptions or identifications of the supply or service. Deviations which are customary in the trade and deviations which are the result of legal provisions or which represent technical improvements, as well as the replacement of components by parts of equivalent value, are permissible in as far as they do not impair applicability for the contractually agreed purpose.

2.2. The customer is bound to his order for 10 days. The contract is concluded by a written order confirmation (by post, fax or e-mail) or by our delivery of the goods.

3. Prices and Payment

3.1. Prices are valid for the delivery or service scope listed in the order confirmation. Additional or special services will be invoiced separately. Prices are given in EUROS ex works plus the statutory VAT as well as packaging, dispatch and insurance costs and customs as well as duties and other official charges for export deliveries.

3.2. Invoices are payable up front per wire transfer only, including potential transaction fees and without any deduction, unless otherwise agreed in writing. The decisive factor for a timely payment is always our receipt of payment.

3.3. Should the customer fail to make payment when due, interest shall be charged upon outstanding amounts at 5% above the applicable base interest rate. The assertion of higher interest rates or additional damages in case of late payment remains unaffected. In case of delay in payment, we reserve the right to hold back outstanding orders/services and to demand cash in advance. Further, we are entitled in this case to refuse all deliveries to the customer arising from other contractual relationships.

3.4. The customer may set-off claims or may exercise a right of retention only insofar as his claims have been judged legally binding or are undisputed.

4. Delivery

4.1. Generally, deliveries shall be made upon receipt of payment or proof thereof (bank sip). Unless not otherwise explicitly agreed upon, statements made concerning performance deadlines shall be deemed non-binding.

4.2. Partial deliveries are permitted, if the partial delivery can be used by the customer under the contract’s intended purpose, the delivery of the remaining ordered goods is ensured and no major additional effort or cost is incurred to the customer.

4.3. Delivery and service deadlines are extended by the time period in which the delivery is not made or service is not rendered due to circumstances for which we are not responsible, specifically due to customs which generally takes up to 4 days. These circumstances include force majeure or labour disputes also when these circumstances occur at the premises of our suppliers or subcontractors. The delivery period shall also be extended by the time that the customer himself is in default of fulfilment of his contractual obligations. The delivery period shall be extended by the period from when the hindrance occurs until the time that the hindrance ceases to exist.

4.4. We only then fall into delay when we are reminded by the customer. The reminder must be in writing and must be connected to an appropriate period of grace. A period of less than 2 weeks is only considered reasonable in cases of extreme urgency.

4.5 Should the customer be in default of acceptance or be guilty of failing to complete other obligations, then we are entitled to demand compensation for the loss resulting to us in this respect, including any extra expenditures.

4.6. The mode of dispatch and packaging are subject to our obligatory discretion. However, we only use sound service providers. With regard to the dispatch costs, the delivery terms valid at the time of the conclusion of the contract apply.

5. Place of performance and passing of risk

5.1. The place of fulfilment for all obligations arising from the contractual relationship is the location of the registered business in Malsch, unless otherwise agreed in writing.

5.2. The risk passes to the forwarder at the latest at the delivery of the delivery object to the forwarder or to any other third party in charge of carrying out the delivery. This applies even if partial deliveries are made.

6. Warranty

6.1. The warranty period is, with the exception of special recourse pursuant to Section 478 BGB of the German Civil Code, to which the statutory warranty period applies, one year from delivery.

6.2. The rights of the customer in cases of defects assume that he has properly fulfilled his inspection and complaint obligations according to § § 377 HGB of the German Commercial Code. The customer must make a complaint on a defect immediately in writing.

6.3. With defects in the delivered goods, we are entitled at our discretion to repair or deliver substitute goods subject to the notice of defects in due time. In the event of the failure, i.e. in particular the impossibility, impracticality, refusal or unreasonable delay in reworking delivered goods or delivering replacement goods, the customer can withdraw from the contract or reasonably reduce the purchase price.

6.4. Claims of the customer due to the expenses necessary for the subsequent performance, particularly transport, carriage, work and material costs, shall be excluded, if the expenses increase because the object delivered by us was subsequently transported by the customer or a third party to location different from the place of delivery, unless the transport is in keeping with the intended use of the delivered object or was agreed with us when concluding the contract.

6.5. The customer’s recourse claims against us exist only insofar as the customer has not reached any agreements with his customers exceeding the statutory claims on account of defects. The customer is obliged to inform us immediately of all cases of recourse occurring in the supply chain when he becomes aware of such.

6.6. If the defect is caused by our negligence, then the customer may demand compensation for loss suffered as per the regulation in section 7 of these contract provisions.

7. Limitation of Liability

7.1. For damages or compensation for futile expenses, regardless of the legal reason, we shall be liable only to the following extent: We accept liability in cases of gross negligence which is limited to the typical foreseeable damage at the conclusion of the contract. We are otherwise liable for damages caused by acts of slight negligence only if such acts are in breach of an essential contractual duty herein, the fulfilment of which enables the agreement in the first place and on which the customer may customarily rely (cardinal obligations). Furthermore, liability is limited to € 1,000,000 for damage to property or € 2,000,000 for personal injury.

7.2. The afore-mentioned exclusions and restrictions of liability do also apply to our employees, vicarious agents and to any third party to whom we have recourse for performance of the agreement.

7.3. The limitations on liability will not apply if we have given a guarantee for the quality of the goods or for damages which are to be replaced according to the Product Liability Act or for damages to life, body or health, and even if we have fraudulently concealed a defect or for legal claims.

8. Retention of title

8.1. We shall retain the title to the object of purchase until the purchase price has been paid in full. If the customer is in default of payment for more than 10 days, we have the right to withdraw from the contract and to recover the goods at the customer’s expense.

8.2. The customer is entitled to process and resell the goods which are subject to retention of title in the ordinary course of business.

8.3. Should the goods subject to retention of title be processed by the customer, it is agreed that this happens in our name and for our account and in doing so we acquire immediate ownership or – if the processing is of material from several owners or if the value of the material to be processed is higher than the value of the goods subject to retention of title – we acquire joint ownership (fractional share of property) concerning the newly created item in relation of the goods subject to retention of title value to the value of the newly purchased products. In the event that no such property purchase with us should arise, the customer herewith assigns his future title or – in the above ratio – joint title of the newly created goods as security to us. To the extent that secured goods are combined or inseparably intermingled with any other goods to create a single product and one of the other goods is considered the main item, the customer shall, inasmuch as the main item belongs to him, transfer the co-ownership in the uniform item proportionally to us in the ratio stated above.

8.4. In the case of the resale, the customer assigns to us in the amount of the invoice value of our claim, already now all claims from a such resale, whether this occurs before or after any processing of the delivered goods subject to retention of title ownership Without prejudice to our right to collect the claims ourselves, the customer shall remain entitled to collect the claim also after the assignment. In this context, we are obliged not to collect the claim as long as and insofar as the customer meets his payment obligations, does not start bankruptcy or similar proceedings and does not stop payment.

8.5. Should third parties lay claim to goods subject to retention of title, specifically by garnishment, the Customer shall immediately bring our proprietary rights to the attention of such third parties and notify us of this. f the third party is unable to reimburse our judicial or extrajudicial costs arising in this context, the customer will be liable.

8.6. We are obliged to release securities at the request of the customer, if the security exceeds the value of the claim to be secured by more than 20%.

9. Property rights

9.1. We retain the right of ownership or sole copyright, in particular trademark law and design protection for any offers and cost estimates submitted by us as well as documents such as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and auxiliary materials which we make available.

9.2. The customer may not make these documents accessible or known to third parties as such or in their content or have them used or reproduced, either by himself or by third parties without our express permission. The documents are to be returned at our request in their entirety and any copies made are to be destroyed if they are no longer required by the customer in the proper course of business or when negotiations do not result in a concluded contract.

10. Final provisions

10.1. Modifications and amendments to this contract must be in written form. The requirement of the written form can only be amended in writing. To comply with the written form, transmission in text form, specifically by fax or e-mail, is sufficient.

10.2. The laws of the Federal Republic of Germany shall apply exclusively with the exception of the UN Sales Convention (CISG).

10.3. For all conflicts arising from and in connection with this contract in contracts with merchants, the court of our registered office in Malsch is the exclusive place of jurisdiction.

10.4. If the contract or these General Terms and Conditions contain loop holes, then legally valid regulations are to be applied to fill these holes, which the contractual partners would have agreed according to the economic objective of the contract and the purpose of these General Terms and Conditions, if they had been aware of the loop holes.

October 2014

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