This is a translated version of the legally binding german version (dated 05.03.2016) 

§ 1 General - Scope of application

1. the following terms and conditions and any separate contractual agreements shall apply to all contracts concluded between the customer and GUKO GmbH for deliveries and services. Deviating terms and conditions of purchase of the customer shall not become part of the contract - even if the order is accepted. A contract is concluded - without special agreements - with the written order confirmation of GUKO GmbH.

2. deviating terms and conditions of business of the customer shall not apply - even through acceptance of the order - even if GUKO does not object to their validity in individual cases.

3. the written order confirmation shall be decisive for the scope of delivery. The scope of delivery and services shall not include: construction work (bricklaying and chiselling work), steel construction work, installation work on heating and supply systems as well as work on electrical systems. Further exclusions of deliveries and services can be found in the respective order confirmation. In addition, the latest version of the VOB/B (German Construction Contract Procedures) shall apply to work services.

4. GUKO GmbH's terms and conditions of sale/delivery shall only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB).

§ 2 Offer and conclusion of contract, copyrights of GUKO GmbH

1. the information provided by GUKO GmbH in illustrations, descriptions, drawings, catalogs, brochures and advertisements are subject to change and non-binding, unless they are expressly designated as binding and are included in the contract as its content.

2. the customer acknowledges the copyrightability of the products, samples, cost estimates as well as the drawings, illustrative concepts, descriptions, design drawings of a physical and non-physical nature - also in electronic form - etc. of GUKO GmbH.
The provisions of the Copyright Act shall also apply if the required level of creation standardized in Section 69a (3) UrhG has not been reached. 
The aforementioned objects/works/intellectual creations may not be made accessible to third parties or only with the written consent of GUKO GmbH, irrespective of whether GUKO GmbH has marked them as confidential. If the customer does not place an order, all documents of GUKO GmbH must be returned or destroyed immediately.

3 GUKO GmbH undertakes to make information and documents designated as confidential by the customer accessible to third parties only with the customer's consent.
 

§ 3 Prices and payments

1. the prices at the time of acceptance of the offer (written agreement between GUKO GmbH and the customer) shall apply. In the case of delivery periods of more than 12 weeks or continuing obligations in the form of forward or call-off delivery contracts, GUKO GmbH shall be entitled to adjust the prices to changing market conditions, in the event of significant changes in the procurement costs or the procurement prices at most once per quarter; the customer shall be entitled to a special right of termination in the event of price increases which significantly exceed the regular increase in the cost of living.
Unless otherwise agreed, the prices are ex works, excluding packaging, shipping, freight, unloading, assembly, commissioning, customs duties, other ancillary costs and the like. These shall be invoiced separately. Value added tax shall be added to the prices at the respective statutory rate. This shall be shown separately at the statutory rate on the date of invoicing.

2. invoices for goods are to be paid within 14 days of the invoice date at the latest without deduction free of charge to the paying agent of GUKO GmbH.
If a separate payment agreement has not been made, payments by the customer for the work to be produced shall be made as follows:
- 30% down payment immediately after receipt of the order confirmation
- 60% as soon as the customer has been informed that the goods are ready for dispatch, or upon delivery
- 10% after assembly and commissioning, but no later than 30 days after delivery
Other invoices relating to services such as assembly, commissioning, maintenance work and freight are due and payable without deduction to the paying agent of GUKO GmbH no later than 14 days after the invoice date. In the case of overdue claims (default within the meaning of § 286 BGB), GUKO GmbH is entitled to first offset payments against existing debts.

3. a payment shall only be deemed to have been made when GUKO GmbH can dispose of the amount. In the case of payments by check, the payment shall only be deemed to have been made when the check has been cashed (payment on account of performance).

4. after expiry of the respective deadlines, the customer shall be in default even without a separate reminder. The statutory provisions shall apply in this respect. Default interest in the amount of 8 percentage points above the respective prime rate shall apply. The right to claim proven, higher interest damages and other damages caused by default shall remain unaffected. 5.

5. in the case of long-term payment agreements, the entire remaining amount shall become due for payment immediately if the customer is more than 10 days in arrears with two consecutive installments.

6. the customer shall only be entitled to withhold payments or offset them against counterclaims arising from the legal relationship in dispute or other legal relationships to the extent that counterclaims are undisputed or have been legally established.
 

§ 4 Time of delivery and performance

1. delivery dates or deadlines result from the specific agreements between the parties. Compliance with the stated delivery dates presupposes the clarification of all commercial and technical questions and the dispatch of the order confirmation to the customer. Likewise, the customer shall duly and timely fulfill and provide evidence of all obligations incumbent upon him which are necessary for the performance of the service by GUKO GmbH - e.g. provision of the necessary official certificates or approvals, other preparatory work or the making of a down payment. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if GUKO GmbH is responsible for the delay; likewise, the deadlines shall be extended appropriately if non-compliance with the same is due to force majeure (war, etc.) or similar events (strike, etc.).

2. otherwise, the delivery period shall be deemed to have been complied with if the delivery item has left the factory of GUKO GmbH by the time it expires or if the customer has been notified in writing that the goods are ready for dispatch. Insofar as an acceptance has to take place, the acceptance date shall be decisive - except in the case of justified refusal of acceptance - or alternatively the notification of readiness for acceptance.

3. compliance with the delivery time is subject to correct and timely delivery to GUKO GmbH. GUKO GmbH shall inform the customer as soon as possible of any impending delays.4 If the dispatch or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged the costs incurred as a result of the delay, starting one month after notification of readiness for dispatch or acceptance.

5 GUKO GmbH shall be liable to the customer in the event of a delay in delivery in accordance with the statutory provisions if this is based on an intentional or grossly negligent breach of contract for which GUKO GmbH is responsible, whereby GUKO GmbH is to be held responsible for the fault of its representatives or vicarious agents. The liability of GUKO GmbH is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional breach of contract for which GUKO GmbH is responsible.GUKO GmbH is also liable in accordance with the statutory provisions insofar as the delay in delivery for which GUKO GmbH is responsible is due to the culpable breach of an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.

6. the assertion of a contractual penalty is excluded in the event of a delay in delivery. If GUKO GmbH is in default, the customer may demand a lump-sum compensation. It shall amount to a maximum of 0.5% for each completed week of delay, but not more than a total of 5% of the delivery value, for that part of the deliveries which could not be put into useful operation due to the delay for which GUKO GmbH is responsible. The right of GUKO GmbH to claim that the customer has suffered less or no damage remains unaffected.

7. any further liability for a delay in delivery for which GUKO GmbH is responsible is excluded. The further statutory claims and rights of the customer, to which he is entitled in addition to the claim for damages due to a delay in delivery for which GUKO GmbH is responsible, remain unaffected.

§ 5 Transfer of risk, shipment/packaging, acceptance 

1. unless otherwise stated in the order confirmation, delivery - even if carriage paid - is agreed to be "ex works". The place of performance for all obligations arising from the contractual relationship (including rectification due to warranty for defects) is the registered office of GUKO in Uslar, unless otherwise agreed. If GUKO is also responsible for the installation, the place of performance shall be the place where the installation is to be carried out.

2. the type of shipment and packaging are subject to the dutiful discretion of GUKO. GUKO shall take into account the wishes and interests of the customer with regard to the type and route of shipment; any additional costs incurred as a result shall be borne by the customer - even if carriage paid delivery has been agreed. 

3. at the request of the customer, GUKO shall insure the delivery by means of transport insurance The costs incurred in this respect shall be borne by the customer. The order to take out transport insurance must be submitted to GUKO GmbH in writing. 
 In all other respects, the shipment shall be made uninsured at the risk of the customer. Transport damage or the loss of delivery items must be recorded immediately after receipt of the shipment, noted in the freight documents and reported to GUKO in writing. 

4 GUKO GmbH does not take back transport packaging and all other packaging in accordance with the packaging regulations. The customer shall dispose of the packaging at his own expense. Separate agreements may be made regarding the return of transport and other packaging.

5. the risk shall pass to the customer at the latest upon handover of the delivery item (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if GUKO has assumed other services (e.g. shipment or installation). If acceptance has to take place, this shall be decisive for the transfer of risk.

6. if dispatch, delivery, the start or performance of installation or assembly are delayed at the request or through the fault of the customer, the risk shall pass to the customer. GUKO GmbH shall store the goods at the expense and risk of the customer. In this case, the notification of readiness for dispatch shall be equivalent to dispatch.

7. if the customer is in default of acceptance or culpably violates other obligations to cooperate, GUKO GmbH shall be entitled to demand compensation for the resulting damage and any additional expenses. Further claims remain reserved. The risk of accidental deterioration and accidental loss shall pass to the customer upon the occurrence of default of acceptance or debtor's delay.

(8) GUKO GmbH is entitled to make partial deliveries insofar as they are requested by the customer or are reasonable for the customer. In particular, GUKO GmbH is entitled to make partial deliveries if the complete delivery of the order is delayed due to the fact that technical details requested by GUKO GmbH have not been communicated in good time.

9. repeat orders shall be delivered and invoiced separately. Repeat orders do not prevent the transfer of risk of (partial) deliveries already made.

§ 6 Retention of title

1. GUKO GmbH retains title to the delivery item until receipt of all payments - including for any additional and future ancillary services owed - from the contract. In the event of breach of contract by the customer, in particular in the event of default of payment, GUKO GmbH is entitled to take back the reserved goods after setting a reasonable deadline. In this case, the customer is obliged to return the goods, even if GUKO GmbH has not withdrawn from the contract.

2. the customer must treat the reserved goods with care. GUKO GmbH is entitled to insure the goods subject to retention of title against fire, water damage and theft at replacement value at the expense of the customer, unless the customer can prove that he has taken out appropriate insurance himself. Any maintenance and inspection work that becomes necessary must be carried out by the customer in good time at his own expense.

3. during the existence of the retention of title, the customer is prohibited from pledging or transferring ownership by way of security; the customer is only entitled to sell and/or use the goods subject to retention of title in the ordinary course of business as long as he is not in default of payment. The claims arising from the resale or any other legal reason (insurance, unauthorized action) with regard to the reserved goods (including all balance claims from current account) are already now assigned by the customer to GUKO GmbH in full by way of security; GUKO GmbH hereby accepts the assignment. Otherwise, the resale is only permitted under the condition that the customer receives payment from his customers or makes the reservation that the ownership is only transferred to the customer when he has fulfilled his payment obligations.

4. any processing or transformation of the reserved goods by the customer shall in any case be carried out for GUKO GmbH. If the reserved goods are processed with other items not belonging to GUKO GmbH, GUKO GmbH acquires co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. The same shall apply to the new item created by processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other items not belonging to GUKO GmbH, GUKO GmbH shall acquire co-ownership of the new item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other mixed items at the time of mixing. If the item of the customer is to be regarded as the main item as a result of the mixing, the customer and GUKO GmbH agree that the customer shall transfer proportionate co-ownership of this item to GUKO GmbH; GUKO GmbH hereby accepts the transfer. The sole or co-ownership of GUKO GmbH in an item created in this way shall be kept safe by the customer for GUKO GmbH.

5. in the event of access by third parties to the reserved goods, in particular seizures, the customer shall point out the ownership of GUKO GmbH and inform GUKO GmbH immediately so that GUKO GmbH can enforce its ownership rights. Insofar as the third party is not in a position to reimburse GUKO GmbH for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable for this.

6 GUKO GmbH has a special right of termination / right of withdrawal in the event and at the time of the application for the opening of insolvency proceedings of the customer.
 

§ 7 Warranty/ Defects of quality and title, liability and limitations of liability

1. claims for defects on the part of the customer shall only exist if the customer has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). The notification of defects must be made in writing without delay.

2. the customer may, at his discretion, demand the elimination of the defect or the delivery of a defect-free item (§ 439 para. 1 BGB). GUKO GmbH may refuse the type of subsequent performance chosen by the customer if it is associated with disproportionately high costs for GUKO GmbH. In this case, the customer's claim is limited to the other type of subsequent performance (§ 439 para. 3 BGB). Replaced parts shall become the property of GUKO GmbH. The rights of the customer to withdraw from the contract or to reduce the purchase price (reduction) are excluded.
The customer's claim for subsequent performance shall only include the provision of the originally owed service; GUKO GmbH shall only bear necessary expenses insofar as these are not unreasonably increased because the object of the contract is located at a place other than the place of performance. The place of subsequent performance is the place at which GUKO GmbH has its general place of business at the time the obligation arises.
GUKO GmbH shall only bear the costs of removal and installation insofar as these are not disproportionate.

3. the customer shall grant GUKO GmbH a reasonable period for subsequent performance, otherwise GUKO GmbH shall be released from liability and for the resulting consequences. Only in urgent cases of danger to operational safety or to prevent disproportionately high damage is the customer entitled to remedy the defect himself or have it remedied by a third party and to demand reimbursement of the necessary expenses from GUKO GmbH; in this case, GUKO GmbH must be informed immediately. If the subsequent performance has finally failed or if GUKO GmbH - taking into account the statutory exceptions - allows a reasonable deadline set for it to rectify or replace the goods due to a significant defect to elapse fruitlessly, the customer can choose between withdrawing from the contract and reducing the contract price. In the event of an insignificant defect, the customer shall only be entitled to reduce the contract price. The customer may only assert claims for damages under the following conditions due to a defect if the subsequent performance has failed. The right of the customer to assert further claims for damages under the following conditions remains unaffected by this.

4. the right of the customer to assert further claims for damages due to a material defect is excluded, unless GUKO GmbH has fraudulently concealed the defect or has not complied with a quality guarantee. A change in the burden of proof to the disadvantage of the customer is not associated with this provision.

5 Irrespective of the above limitations of liability, GUKO GmbH shall only be liable for damage not caused to the delivery item in the event of intent, gross negligence on the part of the executive bodies or executive employees, culpable injury to life, limb and health, and insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used objects. In the event of culpable breach of material contractual obligations, GUKO GmbH shall also be liable for gross negligence on the part of non-executive employees and for slight negligence, but in this case limited to the reasonably foreseeable damage typical of the contract.

6 GUKO GmbH shall not be liable in the event of unsuitable or improper use, faulty assembly or commissioning, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences - insofar as GUKO GmbH is not responsible for them.

7. if the customer or a third party carries out improper repairs, GUKO GmbH shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of GUKO GmbH.

8. further liability is excluded irrespective of the legal nature of the asserted claim, unless otherwise regulated above; this applies in particular to claims for damages arising from culpa in contrahendo or tortious claims for compensation for material damage or claims for reimbursement of futile expenses instead of performance.

9 The above provisions shall apply equally to defects of title.

§ 8 Impossibility

1. the customer may withdraw from the contract without setting a deadline if GUKO GmbH is finally unable to perform the entire service before the transfer of risk or if, in the case of an order, the execution of part of the delivery becomes impossible and there is a justified interest in refusing the partial delivery. Otherwise, GUKO GmbH shall be liable for impossibility in accordance with § 7 No. 5 and No. 8.

2. if the economic significance or the content of the delivery of GUKO GmbH is considerably changed by unforeseeable events (war, riot, strike, etc.), or if the operation of GUKO GmbH is considerably affected by this, the contract shall be adapted in good faith. If the adjustment of the contract is not economically justifiable, GUKO GmbH shall have the right to withdraw from the contract; in this case, GUKO GmbH shall notify the customer immediately of its wish to withdraw from the contract. 
 

§ 9 Statute of limitations

1. the limitation period for claims for defects is 12 months calculated from the transfer of risk, at the latest from the start of the statutory limitation period.

2. the statutory limitation provisions shall apply to damage that has not occurred to the delivery item itself, insofar as GUKO GmbH can be accused of intent, gross negligence (also of the organs or executive employees), culpable injury to body, life, health or fraudulent concealment, or insofar as liability is assumed for personal injury or property damage to privately used objects in the event of defects in the delivery item in accordance with the Product Liability Act. 
 

§ 10 Industrial property rights and copyrights

1. GUKO GmbH is obliged - subject to agreements to the contrary - to provide the service in Germany free of industrial property rights and copyrights of third parties.

2. if third parties assert justified claims against the customer due to infringement of property rights, GUKO GmbH shall be liable within the period according to § 9 as follows:

GUKO GmbH shall, at its option and expense, either obtain the right of use for the delivery in question or modify or replace it so that rights of use are not infringed.
The customer's compensation for damages shall be governed conclusively by § 7.
(3) The above obligations shall only apply to GUKO GmbH if the customer immediately notifies GUKO GmbH of the claim by a third party, does not acknowledge the infringement vis-à-vis the third party and GUKO GmbH reserves the right to take all defensive and other measures.

4. if the claims of third parties are based on an infringement of the property rights by the customer, claims against GUKO GmbH are excluded. The same applies if the infringement of property rights occurs due to the requirements of the customer or due to an application, modification or similar on the part of the customer which could not have been foreseen by GUKO GmbH.

5. further claims of the customer against GUKO GmbH due to the infringement of property rights and copyrights are excluded.

§ 11 Duration of contract and termination

1. continuing obligations shall commence upon signature or at the time specified in the respective contract as the beginning of the continuing obligation and shall apply - unless otherwise agreed - for a period of one year.

2. the continuing obligation shall be extended by a further year in each case unless one party gives written notice of termination two months before the end of the contract term.

3. the right to extraordinary termination for good cause remains unaffected by this. Good cause shall include, in particular, an application to open insolvency proceedings against the customer's assets, a delay in payment by the customer of more than one month and the violation of property rights and/or copyrights as well as the violation of confidentiality obligations by the customer.

§ 12 Place of performance, place of jurisdiction, contractual language, applicable law

1. place of performance and place of jurisdiction for deliveries and payments (including actions on checks and bills of exchange) as well as all disputes arising between GUKO GmbH and the customer from the contracts concluded between GUKO GmbH and the customer is the registered office of GUKO GmbH (Uslar). However, GUKO GmbH is also entitled to sue the customer at his place of residence and/or business.

2. the relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

(3) In addition, any individual agreements and the statutory provisions of the Federal Republic of Germany shall apply, whereby the individual agreements shall take precedence over the General Terms and Conditions and these shall take precedence over the statutory provisions of the Federal Republic of Germany.

4. the language of the contract and correspondence shall be German. In the event of translation or interpretation disputes regarding contracts and correspondence, the German versions of the documents and contracts shall be exclusively authoritative.

§ 13 Binding nature of the contract

The contract shall remain binding in its remaining parts even if individual provisions are legally invalid. This shall not apply if adherence to the contract would represent an unreasonable hardship for the party.