GTC

- Status: January 2025-

I. General Provisions

These terms and conditions apply exclusively to the legal relationships between the supplier and the customer in connection with the deliveries and/or services of the supplier (hereinafter: deliveries). The customer's general terms and conditions only apply to the extent that the supplier has expressly agreed to them in writing. The scope of the deliveries is determined by the mutually agreed written declarations.

The supplier reserves all property and copyright rights to cost estimates, drawings and other documents (hereinafter referred to as "documents"). The documents may only be made accessible to third parties with the prior consent of the supplier and, if the order is not placed with the supplier, must be returned to the supplier immediately upon request. Sentences 1 and 2 apply accordingly to the customer's documents; however, these may be made accessible to third parties to whom the supplier has legitimately transferred deliveries.

The customer has the non-exclusive right to use standard software and firmware with the agreed performance features in an unchanged form on the agreed devices. The customer may not create a backup copy of the standard software without an express agreement.

Partial deliveries are permissible as long as they are reasonable for the customer.

The term “claims for damages” in these terms and conditions also includes claims for reimbursement of wasted expenses.

Items that are not listed in offers, orders and invoices are not included in the scope of services.

All customized products are excluded from cancellation and return as they were manufactured and/or ordered specifically for the order.

II. Prices, payment terms and offsetting

Prices are ex works excluding packaging plus the applicable statutory sales tax.

If the supplier has undertaken the installation or assembly and nothing else has been agreed, the customer shall bear, in addition to the agreed remuneration, all necessary incidental costs such as travel and transport costs as well as allowances.

Payments are to be made free to the supplier’s payment office.

The customer may only offset claims that are undisputed or legally established.

For first orders, the payment condition "Prepayment - without deduction" automatically applies.

III. Retention of title

The items of the deliveries (reserved goods) for which the purchase price claim is due immediately or for which a payment period of up to and including 30 days after delivery, delivery with installation/assembly or receipt of invoice has been agreed for the due date of the purchase price claim, remain the property of the supplier until full payment has been made.

In all other cases, the items delivered (reserved goods) remain the property of the supplier until all claims against the customer arising from the business relationship have been fulfilled. If the value of all security rights to which the supplier is entitled exceeds the amount of all secured claims by more than 20%, the supplier will release a corresponding portion of the security rights at the customer's request. The supplier has the right to choose between different security rights when releasing them.

While the retention of title exists, the purchaser is prohibited from pledging or transferring the goods as security and is only permitted to resell the goods to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership will not pass to the customer until the customer has fulfilled its payment obligations.

If the purchaser resells the reserved goods, he hereby assigns his future claims against his customers from the resale with all ancillary rights - including any balance claims - to the supplier as security, without the need for any further special declarations. If the reserved goods are resold together with other items without an individual price being agreed for the reserved goods, the purchaser assigns to the supplier that part of the total price claim which corresponds to the price of the reserved goods invoiced by the supplier.

a) The customer is permitted to process the reserved goods or to mix or combine them with other items. The processing is carried out for the supplier. The customer will store the resulting new item for the supplier with the care of a prudent businessman. The new item is considered to be reserved goods.

b) Supplier and Purchaser already agree that in the event of combination or mixing with other items not belonging to the Supplier, the Supplier shall in any case be entitled to co-ownership of the new item in the amount of the share resulting from the ratio of the value of the combined or mixed reserved goods to the value of the remaining goods at the time of combination or mixing. The new item shall in this respect be deemed to be reserved goods.

c) The provision on the assignment of claims under No. 3 also applies to the new item. However, the assignment only applies up to the amount that corresponds to the value of the processed, combined or mixed reserved goods invoiced by the supplier.

d) If the Purchaser combines the reserved goods with real estate or movable property, he shall, without the need for any further special declarations, also assign to the Supplier as security his claim to which he is entitled as remuneration for the combination, together with all ancillary rights, in the amount of the ratio of the value of the combined reserved goods to the other combined goods at the time of the combination.

The purchaser is entitled to collect assigned claims from the resale until revoked. If there is an important reason, in particular in the event of late payment, cessation of payment, opening of insolvency proceedings, protest of a bill of exchange or justified indications of excessive indebtedness or impending insolvency of the purchaser, the supplier is entitled to revoke the purchaser's collection authorization. In addition, the supplier can disclose the security assignment after prior warning and observing a reasonable period of time, realize the assigned claims and demand that the purchaser disclose the security assignment to the customer.

In the event of seizures, confiscations or other dispositions or interventions by third parties, the customer must notify the supplier immediately. If a legitimate interest can be demonstrated, the customer must immediately provide the supplier with the information required to assert its rights against the customer and hand over the necessary documents.

In the event of a breach of duty by the customer, in particular in the event of late payment, the supplier is entitled to withdraw from the contract in addition to taking back the goods after the expiry of a reasonable deadline set for the customer; the statutory provisions on the dispensability of setting a deadline remain unaffected. The customer is obliged to hand them over. Taking back or asserting the retention of title or seizing the reserved goods by the supplier does not constitute withdrawal from the contract unless the supplier has expressly declared this.

IV. Deadlines for deliveries; delay

Compliance with delivery deadlines requires the timely receipt of all documents to be provided by the customer, necessary approvals and releases, in particular plans, as well as compliance with the agreed payment terms and other obligations by the customer. If these requirements are not met in a timely manner, the deadlines will be extended accordingly; this does not apply if the supplier is responsible for the delay.

If the failure to comply with the deadlines is due to

a) force majeure, e.g. mobilization, war, acts of terrorism, riots, or similar events (e.g. strikes, lockouts),

b) Viruses and other attacks by third parties on the supplier’s IT system, insofar as these occurred despite compliance with the usual care in protective measures,

c) obstacles due to German, US or other applicable national, EU or international foreign trade law provisions or due to other circumstances for which the supplier is not responsible, or

d) If the supplier fails to deliver on time or properly, e.g. due to a shortage of components on the world market, the deadlines shall be extended accordingly.

If the supplier is in default (other than for the reasons mentioned in point 2), the customer may - provided that he can credibly demonstrate that he has suffered damage as a result - demand compensation of 0.5% for each completed week of delay, but not more than 5% of the price for the part of the deliveries that could not be used for their intended purpose due to the delay.

Both claims for damages by the customer due to delayed delivery and claims for damages instead of performance that exceed the limits specified in No. 3 are excluded in all cases of delayed delivery, even after expiry of a delivery deadline set for the supplier. This does not apply in cases of liability due to intent, gross negligence or injury to life, body or health. The customer can only withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay in delivery. The above provisions do not involve a change in the burden of proof to the detriment of the customer.

At the supplier's request, the purchaser is obliged to declare within a reasonable period of time whether he is withdrawing from the contract due to the delay in delivery or whether he is insisting on delivery.

If dispatch or delivery is delayed at the request of the customer for more than one month after notification of readiness for dispatch, the customer may be charged storage fees of 0.5% of the price of the items being delivered for each additional month or part thereof, up to a maximum of 5% in total. The contracting parties are free to provide evidence of higher or lower storage costs.

V. Transfer of Risk

The risk shall pass to the purchaser as follows, even in the case of freight-free delivery:

a) for delivery without installation or assembly, when it has been dispatched or collected. At the request and expense of the customer, the delivery will be insured by the supplier against the usual transport risks.

b) in the case of delivery with installation or assembly, on the day of acceptance into the company's own premises or, if agreed, after successful trial operation.

If the dispatch, delivery, start or execution of installation or assembly, acceptance into the customer's own operations or trial operation is delayed for reasons for which the customer is responsible or if the customer is in default of acceptance for other reasons, the risk shall pass to the customer.

VI. Installation and assembly

Unless otherwise agreed in writing, the following provisions apply to installation and assembly:

The purchaser must take over and provide in a timely manner at his own expense:

a) all earthworks, construction work and other ancillary work outside the industry, including the skilled and unskilled workers, building materials and tools required for this purpose

b) the supplies and materials required for assembly and commissioning, such as scaffolding, lifting equipment and other devices, fuels and lubricants

c) Energy and water at the point of use including connections, heating and lighting

d) at the assembly site, there must be sufficiently large , suitable, dry and lockable rooms for the storage of machine parts, equipment, materials, tools, etc. , and suitable work and rest rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances; in addition, the customer must take the same measures to protect the property of the supplier and the assembly personnel on the construction site as he would take to protect his own property.

e) protective clothing and protective devices required due to special circumstances at the installation site

Before the start of the assembly work, the customer must provide the necessary information on the location of concealed electricity, gas, water pipes or similar systems as well as the required static information without being asked to do so.

Before the start of installation or assembly, the supplies and items required to start the work must be at the installation or assembly site and all preparatory work must have progressed sufficiently before the start of construction so that the installation or assembly can begin as agreed and be carried out without interruption. Access roads and the installation or assembly site must be level and cleared.

If the installation, assembly or commissioning is delayed due to circumstances beyond the control of the Supplier, the Customer shall bear the costs of waiting time and additional travel required by the Supplier or assembly personnel to a reasonable extent.

The Purchaser shall promptly confirm to the Supplier on a weekly basis the duration of the assembly personnel’s working hours and the completion of installation, assembly or commissioning.

If the supplier requests acceptance of the delivery after completion, the customer must do so within two weeks. Acceptance is deemed to have occurred if the customer allows the two-week period to elapse or if the delivery has been put into use - possibly after completion of an agreed test phase.

VII. Acceptance

The purchaser may not refuse to accept deliveries due to minor defects.

VIII. Material Defects

The supplier is liable for material defects as follows:

All parts or services which exhibit a material defect shall, at the Supplier’s discretion, be repaired, replaced or provided again free of charge, provided that the cause of the defect already existed at the time of transfer of risk.

Claims for subsequent performance expire after 12 months from the start of the statutory limitation period; the same applies to withdrawal and reduction. This period does not apply if the law stipulates longer periods in accordance with Sections 438 Paragraph 1 No. 2 (buildings and items for buildings), 479 Paragraph 1 (right of recourse) and 634a Paragraph 1 No. 2 (construction defects) of the German Civil Code (BGB), in the case of intent, fraudulent concealment of the defect and non-compliance with a quality guarantee. The statutory provisions on suspension of the expiry, suspension and restart of the periods remain unaffected.

Complaints of defects by the purchaser must be made immediately in writing.

In the event of complaints about defects, the purchaser's payments may be retained to an extent that is in reasonable proportion to the defects that have occurred. The purchaser may only retain payments if a complaint about defects is made that is beyond doubt. The purchaser has no right of retention if his claims for defects have expired. If the complaint about defects was made unjustly, the supplier is entitled to demand reimbursement of the costs incurred from the purchaser.

The supplier must be given the opportunity to remedy the defect within a reasonable period of time.

If the subsequent performance fails for the second time, the customer may – without prejudice to any claims for damages pursuant to No. 10 – withdraw from the contract or reduce the remuneration.

Claims for defects do not apply in the case of only insignificant deviations from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, defective construction work, unsuitable building ground or that occurs due to special external influences that are not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer or third parties make improper changes or repairs, there are also no claims for defects for these and the resulting consequences.

Claims by the purchaser for expenses required for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded to the extent that the expenses increase because the object of the delivery was subsequently moved to a location other than the purchaser's branch, unless the transfer corresponds to its intended use. This applies accordingly to claims for reimbursement of expenses by the purchaser in accordance with Section 445a of the German Civil Code (seller's recourse), provided that the last contract in the supply chain is not a purchase of consumer goods.

The purchaser's recourse claims against the supplier pursuant to Section 478 of the German Civil Code (entrepreneur's recourse) only exist to the extent that the purchaser has not made any agreements with his customer that go beyond the statutory claims for defects. No. 8 also applies accordingly to the scope of the purchaser's recourse claim against the supplier pursuant to Section 478 Paragraph 2 of the German Civil Code.

10.

The purchaser's claims for damages due to a material defect are excluded. This does not apply in the case of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, body or health and an intentional or grossly negligent breach of duty by the supplier. The above provisions do not involve a change in the burden of proof to the detriment of the purchaser. Further claims by the purchaser due to a material defect or claims other than those regulated in this Art. VIII are excluded.

IX. Industrial property rights and copyrights; legal defects

Unless otherwise agreed, the supplier is obliged to provide the delivery free of third-party industrial property rights and copyrights (hereinafter: property rights) only in the country of the place of delivery. If a third party makes justified claims against the customer due to the infringement of property rights by deliveries provided by the supplier and used in accordance with the contract, the supplier is liable to the customer within the period specified in Art. VIII No. 2 as follows:

a) The supplier will, at its own discretion and at its own expense, either obtain a right of use for the deliveries in question, modify them so that the protective right is not infringed, or replace them. If the supplier is unable to do this under reasonable conditions, the purchaser shall have the statutory right to withdraw from the contract or to reduce the price.

b) The Supplier’s obligation to pay damages shall be governed by Article XII.

c) The above-mentioned obligations of the supplier only apply if the customer immediately notifies the supplier in writing of the claims asserted by the third party, does not acknowledge an infringement and the supplier reserves all defensive measures and settlement negotiations. If the customer stops using the delivery to minimize damage or for other important reasons, he is obliged to inform the third party that stopping use does not constitute an acknowledgement of an infringement of property rights.

Claims by the purchaser are excluded to the extent that he is responsible for the infringement of intellectual property rights.

Furthermore, claims by the customer are excluded if the infringement of property rights is caused by special specifications of the customer, by an application that was not foreseeable by the supplier or by the delivery being modified by the customer or used together with products not supplied by the supplier.

In the event of infringements of intellectual property rights, the provisions of Art. VIII Nos. 4, 5 and 9 shall apply accordingly to the Purchaser's claims regulated in No. 1 a).

If other legal defects exist, the provisions of Article VIII shall apply accordingly.

Any further claims of the Purchaser against the Supplier and its vicarious agents due to a legal defect or claims other than those regulated in this Article IX are excluded.

X. Reservation of performance

The performance of the contract is subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international foreign trade law provisions or embargoes or other sanctions.

The purchaser is obliged to provide all information and documents required for export, transport or import.

XI. Impossibility; Contract Adjustment

If delivery is impossible, the customer is entitled to claim damages, unless the supplier is not responsible for the impossibility. However, the customer's claim for damages is limited to 10% of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. This limitation does not apply in cases of liability due to intent, gross negligence or injury to life, body or health; this does not involve a change in the burden of proof to the detriment of the customer. The customer's right to withdraw from the contract remains unaffected.

If events within the meaning of Art. IV No. 2 a) to c) significantly change the economic significance or content of the delivery or have a significant impact on the supplier's business, the contract will be appropriately adjusted in good faith. If this is not economically justifiable, the supplier has the right to withdraw from the contract. The same applies if the necessary export licenses are not issued or cannot be used. If the supplier wishes to exercise this right of withdrawal, he must inform the customer immediately after realizing the significance of the event, even if an extension of the delivery time was initially agreed with the customer.

XII. Other claims for damages

Unless otherwise provided for in these terms and conditions, the customer's claims for damages, regardless of the legal basis, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded.

This does not apply insofar as liability is incurred as follows:

a) under the Product Liability Act

b) in the event of intent

c) in the event of gross negligence on the part of owners, legal representatives or senior employees

d) in the event of fraudulent intent

e) in the event of non-compliance with an assumed guarantee

f) due to culpable injury to life, body or health or

g) due to culpable breach of essential contractual obligations.

However, the claim for damages for the breach of essential contractual obligations is limited to the damage typical for the contract and foreseeable, unless one of the other aforementioned cases applies.

The above provisions do not involve a change in the burden of proof to the detriment of the customer.

XIII. Place of jurisdiction and applicable law

If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the supplier. However, the supplier is also entitled to bring an action at the customer's registered office.

This contract, including its interpretation, is subject to German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).

XIV. Binding nature of the contract

The contract remains binding in its remaining parts even if individual provisions are legally ineffective. This does not apply if adhering to the contract would represent an unreasonable hardship for one of the parties.

General Terms and Conditions of MSR-Traffic GmbH