For reasons of better readability, the simultaneous use of gender-specific language forms is dispensed with in the following and the generic masculine is used. All personal designations apply equally to all genders. This is not intended to express any preference or discrimination against one gender.

§1 Scope of application, form

1. These General Terms and Conditions (hereinafter referred to as “GTC”) of the

ODIMAKO Maschinenbau GmbH

Management Director:                Mr Olaf Dietz

Commercial register entry:      Amtsgericht Lübeck HRB 25848 HL

Addess:                          Industriestraße 6

22885 Barsbüttel

Germany

Contact:

Phone:                            +49 (0) 40 229 275 46

E-Mail:                              info@odimako.com

(hereinafter: “ODIMAKO”, ‘us’ or “we”)

shall apply to all our business relationships with the purchasers of the goods sold by us (hereinafter referred to as “Customer” or “Purchaser”). The GTC shall only apply if the Customer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law. For the purposes of these GTC, an entrepreneur is a natural or legal person or a partnership with legal capacity which, when entering into a legal transaction, acts in the exercise of its commercial or independent professional activity (Section 14 (1) BGB). The GTC also apply to cross-border transactions.

2. All offers, purchases and deliveries in the relationship between ODIMAKO and the customer are subject to these GTC in conjunction with the respective order confirmation by ODIMAKO. General terms and conditions of the customer shall not apply, even if ODIMAKO does not separately object to their validity in individual cases and/or makes deliveries without reservation in the knowledge of conflicting terms and conditions of the customer. They shall also apply to all future deliveries, services or offers to the purchaser, even if they are not separately agreed again.

3. Individual agreements (e.g. framework supply agreements, quality assurance agreements, etc.) and information in our order confirmation shall always take precedence over our General Terms and Conditions. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

4. Amendments or additions to this contract as well as legally relevant declarations and notifications by the Customer in relation to the contract (e.g. setting of deadlines, notification of defects, termination, withdrawal or reduction) must be made in text form (e.g. letter, e-mail, fax). This also includes an amendment or revocation of this text form clause, unless the customer proves that the parties have deliberately waived this clause verbally with knowledge of the text form agreement. Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.

5. The contractual language is German.

 

§2 Subject matter of the contract, offer and conclusion of contract

1. All offers, brochures, catalogs and information on the homepage of ODIMAKO are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. ODIMAKO may accept orders or commissions within fourteen days of receipt.
2. The individual contract between ODIMAKO and the customer, including these GTC, is solely decisive for the legal relationship between ODIMAKO and the customer. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal commitments made by ODIMAKO prior to the conclusion of this contract are not legally binding and are replaced by the contract concluded (at least) in text form, unless it is expressly stated in each case that they continue to be binding.
3. Information provided by ODIMAKO on the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of the same (e.g. drawings and illustrations) are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted, provided they do not impair the usability for the contractually intended purpose. Only the quality expressly stated as guaranteed in the contract shall be deemed guaranteed.
4. ODIMAKO reserves the right of ownership or copyright to all offers and cost estimates submitted as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the customer. The customer may not make these objects accessible to third parties, disclose them, use them itself or through third parties or reproduce them without the express consent of ODIMAKO. At the request of ODIMAKO, the customer must return these items in full and destroy any copies made if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of normal data backup.

§ 3 Reservation of self-delivery

1. The delivery of the goods offered by ODIMAKO is subject to our proper and timely self-delivery by our suppliers. ODIMAKO undertakes to conclude a congruent covering transaction and to order the goods required to fulfill the contract from its suppliers in good time.
2. If ODIMAKO is not supplied despite the conclusion of a congruent covering transaction through no fault of its own, we reserve the right to withdraw from the contract in whole or in part. In this case, the customer shall be informed immediately of the non-availability; any payments already made shall be reimbursed immediately.
3. The reservation of self-supply shall not apply if ODIMAKO has expressly assumed the procurement risk or has given a delivery guarantee.

§4 Prices and payment

1. The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services shall be invoiced separately. The prices are quoted in EURO ex works plus packaging, statutory VAT, customs duties for export deliveries as well as fees and other public charges.
2. Insofar as ODIMAKO is obliged under the Packaging Ordinance to take back the packaging used for transportation, the customer shall bear the costs for the return transport of the packaging used and the reasonable costs of its recycling.
3. ODIMAKO reserves the right to adjust prices accordingly in the event of cost changes occurring prior to delivery.
4. The customer shall make payment in accordance with the agreed terms of payment. In the absence of a special agreement, the customer shall pay 1/3 of the contract price immediately after conclusion of the contract and 2/3 after notification of readiness for shipment without deduction free paying agent of ODIMAKO.
5. If the customer is in arrears with a payment or if there are demonstrable circumstances according to which the creditworthiness of the customer is no longer given, ODIMAKO is entitled to suspend the actions necessary for the fulfillment of its contractual obligations.
6. If the agreed payment deadlines are exceeded, ODIMAKO shall be entitled to demand default interest in the amount of 9 percentage points above the base interest rate p.a. in addition to the overdue payment in accordance with § 288 para. 2 BGB. If the customer fails to make payment even after a reasonable period of grace, the entire remaining debt shall become due immediately, without prejudice to further rights.
7. Offsetting against counterclaims of the customer or the retention of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established.
8. If the delivery item was delivered before payment of all amounts owed by the customer, the customer is obliged to insure the delivery item sufficiently in favor of ODIMAKO until full payment has been made.

§5 Delivery period – Force majeure – Delay in delivery

1. The delivery period shall commence as soon as the contract has been concluded and the customer has fulfilled all contractually agreed conditions to be provided by him, in particular has made agreed payments and provided securities, and after clarification of all technical details necessary for the execution of the order.
2. The delivery deadline shall be deemed to have been met if the delivery item is ready for dispatch at the respective supplying plant by the time it expires.
3. Compliance with the delivery time by ODIMAKO presupposes the fulfillment of the contractual obligations by the customer.
4. The delivery period shall be extended appropriately if compliance with it becomes impossible due to an unforeseeable circumstance occurring after conclusion of the contract which is beyond the control of ODIMAKO and prevents the completion or delivery of the delivery item. Such circumstances (grounds for relief of ODIMAKO) are for example: all cases of force majeure, operational disruptions, restriction of energy supply, fire, lack of means of transport and lack of workers/skilled workers due to labor disputes, even if these occur at a supplier of ODIMAKO, as well as other direct and indirect effects of labor disputes. ODIMAKO shall not be responsible for the aforementioned circumstances even if they occur during an already existing delay in delivery.
5. If ODIMAKO is in default and the customer suffers damage as a result, it shall be entitled to demand a lump-sum compensation for delay. For each full week of delay, this shall amount to 0.25 % of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. The total compensation shall in no case exceed 5% of the above-mentioned contract price.
6. The customer may withdraw from the contract without setting a time limit if the entire performance becomes finally impossible for ODIMAKO before the passing of risk (§ 275 BGB). Furthermore, the customer may withdraw from the contract if, in the case of an order, the execution of part of the delivery becomes impossible and the customer has a justified interest in rejecting the partial delivery. If this is not the case, the customer must pay the contractual price for the partial delivery. Otherwise, § 10 para. 2 of these GTC shall apply.
7. If the impossibility occurs during the delay in acceptance, or if the customer is solely or predominantly responsible for these circumstances, he shall remain obliged to provide consideration.
8. If the customer grants ODIMAKO a reasonable period of time for performance in the event of default – taking into account the statutory exceptions – and if the deadline is not met, the customer shall be entitled to withdraw from the contract within the framework of the statutory provisions.
9. Further claims arising from delay in delivery shall be determined exclusively in accordance with § 10 (2) of these GTC.

§6 Place of fulfillment, shipping, packaging, transfer of risk, acceptance

1. Subject to the following § 6 para. 1 sentence 2, the place of performance for all obligations arising from the contractual relationship is the registered office of ODIMAKO, unless otherwise agreed. If ODIMAKO is also responsible for assembly, the place of performance shall be the place where the assembly is to take place.
2. The mode of shipment and the packaging are subject to the dutiful discretion of ODIMAKO.
3. The time of transfer of risk shall be determined in accordance with the agreed Incoterms as applicable on the date of conclusion of the contract.
4. Minor defects shall not entitle the customer to refuse acceptance of the delivery.
5. ODIMAKO is entitled to make partial deliveries.
6. Acceptance tests which are carried out outside the normal control of ODIMAKO shall be at the expense of the customer and require express agreement.
7. If the purchaser does not accept the delivery at the contractually agreed time, the purchaser must nevertheless make the payments owed on the agreed due dates. If the shipment is delayed for reasons for which ODIMAKO is not responsible, the delivery shall be stored at the expense and risk of the customer.
8. The shipment shall only be insured by ODIMAKO against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.
9. If acceptance is to take place, the purchased item shall be deemed to have been accepted if

• the delivery and, if ODIMAKO is also responsible for the assembly, the assembly has been completed,
• ODIMAKO has informed the customer of this with reference to the fiction of acceptance according to this § 6 para. 9 and has requested the customer to accept the goods,
• 10 working days have elapsed since delivery or assembly or the customer has started to use the delivery item and in this case 5 working days have elapsed since delivery or assembly and
• the customer has failed to accept the goods within this period for a reason other than a defect notified to ODIMAKO which makes the use of the purchased item impossible or significantly impairs it.

§7 Retention of title

1. Deliveries are made exclusively subject to retention of title. Ownership shall only be transferred to the purchaser when he has fulfilled all his obligations from all deliveries of goods and other services of ODIMAKO. If the value of all security rights to which ODIMAKO is entitled against the purchaser exceeds the amount of all secured claims by more than 20 %, ODIMAKO shall release the excess part of the security rights at the request of the purchaser; ODIMAKO shall be entitled to choose between different security rights for the release.
2. If the delivery item is firmly combined with another item, the customer shall transfer its ownership or co-ownership rights acquired through the combination to ODIMAKO in advance until all its payment obligations have been met in full.
3. If the delivery item is sold by the purchaser – for which it requires the express approval of ODIMAKO – the purchaser assigns a claim from the sales contract to ODIMAKO in advance until all its payment obligations have been met in full.
4. The customer may neither pledge nor assign the delivery item without the consent of ODIMAKO until complete fulfillment of its payment obligations and must inform ODIMAKO immediately in writing in the event of seizure of the delivery item by third parties or other impairments of ODIMAKO’s right of ownership.
5. The purchaser is obliged to cooperate in measures which are necessary to protect the property of ODIMAKO. If an entry in a retention of title register or similar public register is required for the validity of the retention of title, the purchaser authorizes ODIMAKO by signing the contract to make the entry or priority notice of the retention of title in public registers, books or the like in accordance with the relevant national laws at the expense of the purchaser and to fulfil all formalities in this respect.

§8 Export control / licensing requirements

1. The purchaser undertakes to comply with all applicable national, European and international export control regulations, embargo regulations and customs regulations when passing on the goods delivered by ODIMAKO (including technical information and, if applicable, software) to third parties at home or abroad. This applies in particular to regulations of the European Union, the Federal Republic of Germany and the United States of America, where applicable.
2. The customer is obliged to check and ensure the goods on his own responsibility before each transfer, export or re-export,

• whether there is an authorization requirement for this and

• whether the transfer violates embargoes or other restrictions.

3. Upon request, the Purchaser shall provide all information on the final destination, end use and end user of the delivered goods required to fulfill the inspection obligations under export law.

4. In the event of a breach of export control regulations by the customer, the customer shall indemnify ODIMAKO against all resulting damages, claims of third parties and official measures.

 

§9 Warranty – scope and duration of warranty claims

1. The statutory provisions shall apply to the rights of the Purchaser in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. In all cases, the statutory provisions on the sale of consumer goods (§§ 474 ff. BGB) and the rights of the customer arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
2. The basis of our liability for defects is above all the agreement reached on the quality and intended use of the goods (including accessories and instructions, if applicable). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were made public by us at the time of conclusion of the contract shall be deemed to be an agreement on quality in this sense. If the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (3) BGB).
3. In the case of goods with digital elements or other digital content, we shall only be obliged to provide and, if applicable, update the digital content if this is expressly stated in a quality agreement in accordance with para. 2
4. In principle, we shall not be liable for defects of which the customer is aware at the time of conclusion of the contract or of which he is grossly negligent (§ 442 BGB). Furthermore, the customer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect is discovered during delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 3 working days of delivery and defects not recognizable during the inspection within the same period from discovery. If the customer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions.
5. If the delivered item is defective, we shall initially be entitled to choose whether we provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the customer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
6. We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
7. The customer must give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. At the request of ODIMAKO, a rejected delivery item must be returned to ODIMAKO carriage paid.
8. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these GTC, if a defect actually exists. Otherwise, we may demand compensation from the customer for the costs arising from the unjustified request to remedy the defect if the customer knew or could have recognized that there was in fact no defect. Replaced parts shall become the property of ODIMAKO.
9. In urgent cases, e.g. to prevent disproportionate damage, the customer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions. If the purchaser or a third party carries out improper repairs without prior notification to ODIMAKO, ODIMAKO shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of ODIMAKO.
10. If a reasonable deadline to be set by the customer for subsequent performance has expired unsuccessfully or is dispensable in accordance with the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.
11. The limitation period for claims for defects shall be 12 months from delivery or, if acceptance is required, from acceptance, subject to a mandatory longer limitation period (§§ 202, 309 No. 7, 438 para. 3, 634a para. 3 BGB). This period shall not apply to claims for damages of the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by ODIMAKO or its vicarious agents, which shall in each case become statute-barred in accordance with the statutory provisions. If the delivery is delayed for reasons for which the customer is responsible, the date of the notification of readiness for dispatch shall be decisive for the start of the limitation period.
12. If the use of the delivery item leads to an infringement of industrial property rights or copyrights, ODIMAKO shall procure the right to further use for the customer at its own expense or modify the delivery item in a manner reasonable for the customer so that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer is entitled to withdraw from the contract. ODIMAKO is also entitled to withdraw from the contract under the aforementioned conditions. In addition, ODIMAKO shall indemnify the purchaser against undisputed or legally established claims of the respective owners of the property rights.
13. The obligations of ODIMAKO stated in § 9 para. 12 of these GTC are conclusive subject to § 10 para. 2 of these GTC in the event of infringement of property rights or copyrights.

They only exist if

• the customer informs ODIMAKO immediately of any asserted infringements of industrial property rights or copyrights,
• the customer supports ODIMAKO to a reasonable extent in the defense against the asserted claims or enables ODIMAKO to carry out the modification measures in accordance with § 9 para. 12 of these GTC,
• ODIMAKO reserves the right to take all defensive measures, including out-of-court settlements,
• the defect of title was not caused by the fact that the customer modified the delivery item without authorization or used it in a manner not in accordance with the contract.

14. claims of the customer for reimbursement of expenses pursuant to § 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 para. 5, 327u BGB). Claims of the customer for damages or reimbursement of futile expenses (§ 284 BGB) shall only exist in accordance with the following § 10, even if the goods are defective.

 

§10 Liability for damages due to fault

1. If the delivery item cannot be used by the customer in accordance with the contract due to the fault of ODIMAKO as a result of omitted or incorrect information or due to the breach of other contractual secondary obligations – in particular the instructions for the operation and maintenance of the delivery item – the provisions of § 9 of these GTC shall apply accordingly to the exclusion of further claims of the customer.
2. ODIMAKO shall only be liable – on whatever legal grounds – for damages that have not occurred to the delivery item itself, such as loss of production, loss of use, loss of orders, financing costs, loss of profit, consequential damages and other direct or indirect damages.

• with intent,
• in the event of gross negligence on the part of the owner/the executive bodies or senior employees of ODIMAKO,
• in the event of culpable injury to life, limb or health,
• in the case of defects which it has fraudulently concealed or the non-existence of which it has guaranteed,
• in the event of defects in the delivery item, insofar as liability exists under the Product Liability Act or other mandatory statutory provisions for personal injury or property damage to privately used items.

In the event of culpable breach of material contractual obligations, ODIMAKO shall also be liable for gross negligence on the part of non-executive employees and for slight negligence; in the latter case limited to reasonably foreseeable damage typical of the contract.

3. Further claims are excluded.

 

§11 Software usage

1. If software is included in the scope of delivery, the customer shall be granted a non-exclusive right to use the software supplied, including its documentation. It is provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.
2. The customer may only reproduce, revise, translate or convert the software from the object code into the source code to the extent permitted by law. The customer undertakes not to remove manufacturer’s details – in particular copyright notices – or to change them without the prior express consent of ODIMAKO.
3. All other rights to the software and the documentation, including copies, shall remain with ODIMAKO or the software supplier. The granting of sublicenses is not permitted.

§12 Assembly

 

If ODIMAKO also undertakes the installation of the delivery item, the installation conditions of ODIMAKO shall apply in addition, unless special contractual agreements have been made.

 

§13 Confidentiality and data protection

• ODIMAKO and the customer are obliged to treat the information and documents mutually received during the conclusion and execution of a contract, in particular confidential information, personal data and business secrets, as strictly confidential even beyond the term of the contract and not to pass them on to third parties. Employees must be obligated accordingly.
• The contracting parties undertake to comply with the provisions of the General Data Protection Regulation and the Federal Data Protection Act as amended from time to time within the scope of their business operations and to impose these obligations on their employees.
• Insofar as this is necessary for the execution and processing of the contractual relationship, ODIMAKO reserves the right to store the customer’s data relating to the contractual relationship within the framework of the statutory regulations for the purpose of data processing and to transmit it to third parties (e.g. insurance companies or credit agencies). In particular, the complete text of the contract is stored for the purpose of contract fulfillment. The collection, transmission or other processing of personal data of the customer for purposes other than those specified in this § 13 shall not take place without the express prior consent of the customer.
• If commissioned data processing occurs within the framework of the execution of the contract, the customer undertakes to conclude a “commissioned data processing agreement” with ODIMAKO and to provide all data required for this purpose.

§14 Final provisions

1. If the purchaser is a merchant, a legal entity under public law or a special fund under public law or if it has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between ODIMAKO and the purchaser shall be the registered office of ODIMAKO. Mandatory statutory provisions on exclusive places of jurisdiction as well as the authority of ODIMAKO to also appeal to the court at another statutory place of jurisdiction shall remain unaffected by this provision.
2. The relations between ODIMAKO and the customer shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).
3. The assignment of rights and obligations arising from this contract requires the prior consent of the other party to the contract in text form.
4. The invalidity of one or more provisions of this contract shall not result in the invalidity of the remaining provisions. The invalid provision shall be replaced by a provision which comes closest to the economic purpose of the permissible provisions and which the parties should reasonably have agreed to in good faith.
5. The English version of these GTC is provided for convenience only. In the event of any discrepancies between the English and German versions of these GTC, the German version shall always take precedence.