General Terms and Conditions of POWERTECH International GmbH

§ 1 - Scope

(1) These General Terms and Conditions (Terms and Conditions of Sale and Delivery) shall apply as an essential part of the contract for all deliveries and services of the company POWERTECH International GmbH within the scope of purchase contracts, contracts for work and services and contracts for work and materials.
We do not recognise any terms and conditions of the ordering party that conflict with or deviate from our General Terms and Conditions of Business (Terms and Conditions of Sale and Delivery); on the contrary, they are hereby expressly objected to.
A repeated objection after receipt of the order is not required.

(2) These Terms and Conditions of Sale and Delivery shall also apply to all future transactions with the Purchaser, insofar as they are legal transactions of a related nature.
They shall apply irrespective of whether the goods have been manufactured by us or purchased from sub-suppliers.

(3) Our General Terms and Conditions of Business (Terms and Conditions of Sale and Delivery) shall be deemed to have been accepted when the order is placed or our order confirmation is received, but at the latest when our delivery is accepted.

§ 2 - Offer and conclusion of contract

(1) All prices quoted by us in cost estimates (our "quotations"), price lists, order confirmations, invoices or other documents constitute information on which the customer may base his order (his quotation).
Unless expressly stated otherwise, the prices quoted in our cost estimates are automatically limited to thirty days.

(2) Insofar as an order or order placement is to be regarded as an offer in accordance with § 145 BGB, we can accept this within two weeks.
The delivery or purchase contract shall only become binding upon dispatch of our order confirmation in text form (acceptance of the orderer's offer).

(3) The order following the provision of cost estimates or other documents alone does not constitute an effective conclusion of the contract.
Rather, this always requires our order confirmation in text form.

(4) If, by way of exception, we do not issue an order confirmation, the delivery or purchase contract shall become effective upon notification in text form of readiness for dispatch, delivery (our delivery note) or invoicing of the goods (our invoice).

(5) Insofar as import licences or other permits are required in the country of destination, we must be informed of their number, date of approval and period of validity by the customer in text form when the order is placed.

§ 3 - Documents handed over

(1) We reserve the property rights and copyrights to all documents provided to the customer in connection with the placement of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our express consent in text form.
These documents may not be made accessible to third parties unless we give our express consent to this in text form.

(2) Insofar as we do not accept the orderer's offer within the period of § 2, these documents shall be returned to us without delay.

(3) The drawings, illustrations, weights and other information contained in the documents are, unless specifically confirmed, only approximate. We reserve the right to make design changes.

§ 4 - Prices and payment

(1) All prices stated by us in cost estimates (our "offers"), price lists, order confirmations, invoices or other documents refer to net EURO values.
This also applies to deliveries and services outside the European Monetary Union, the European Economic Area or Switzerland.
The prices quoted by us are always subject to change without notice as long as they have not been expressly designated as binding by us in text form.

(2) Unless otherwise agreed in text form, our prices shall apply ex our place of delivery (our warehouse at the company headquarters - INCOTERMS: EXW - EX WORKS - ex works).
Costs of packaging shall be invoiced separately.
Costs for transport, insurance and other ancillary transport costs such as customs duties, fees or public charges shall be borne by the customer in accordance with the EXW clause.
The Purchaser shall in any case bear the statutory value-added tax applicable in the Federal Republic of Germany, insofar as we are obliged to levy it under German law.

(3) Unless otherwise expressly agreed in text form, the price stated in our invoice is due for payment 30 days after the invoice date.
We grant a two percent discount for payment within 14 days of the invoice date; the receipt of payment by us is decisive.
We may at any time change or suspend payment terms granted, refuse shipment or cancel orders not yet listed if we believe that the financial situation of the customer justifies such measures or if the customer is in default of payment.

(4) In the event of late payment, the Purchaser shall pay interest from the due date at a rate of five per cent above the respective base rate of the European Central Bank (ECB) p.a..
We reserve the right to assert a higher damage caused by delay.

(5) Unless an express fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries that take place four or more months after conclusion of the contract.

§ 5 - Offsetting and rights of retention

The customer shall only have the right to offset if his counterclaims have been legally established or are undisputed.
The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 6 - Delivery

(1) Our deliveries shall be made in accordance with the rules of the EXW clause of the INCOTERMS from our place of delivery (our warehouse at the company headquarters).
Our shipping and delivery dates are - based on current conditions and our ability to deploy labour, material and spare parts in a timely manner - estimated.

(2) The delivery period shall commence on the date of the order confirmation, but not before all technical and commercial details have been clarified.
The commencement of the delivery period is subject to the timely and proper fulfilment of the purchaser's obligations.
We reserve the right to plead non-performance of the contract.

(3) If the Purchaser requests a change in the design of the delivery item within the delivery period, the delivery period shall start anew at the time of the request for change.

(4) The delivery deadline shall be deemed to have been met if the purchaser has been notified in text form that the goods are ready for dispatch within the delivery deadline.

(5) Partial deliveries are permissible.

(6) The occurrence of unforeseen events entitles us to postpone delivery for the duration of the hindrance and a reasonable start-up period.
An unforeseen event is deemed to be such circumstances that we cannot avert with reasonable care according to the circumstances of the case.

(7) If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses.
We reserve the right to assert further claims.
If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.

(8) Goods reported ready for dispatch must be called off immediately.
Otherwise we are entitled to dispatch them at our discretion or to store them at the expense and risk of the client and to invoice them immediately.

§ 7 - Transfer of risk in case of shipment

(1) If the goods are delivered to the customer at the customer's request or in accordance with the provisions of § 6, we shall make the goods available for collection at our place of delivery (our warehouse at the company's registered office) in accordance with INCOTERMS EXW.
Consequently, the goods will not be loaded by us onto a vehicle or, if applicable, cleared for export.
The risk of accidental loss or accidental deterioration of the goods shall pass to the customer.
This applies irrespective of whether the goods are dispatched from the place of performance or who bears the costs specified in § 4 paragraph 2 in the individual case.

(2) If the dispatch is delayed due to the conduct of the Purchaser, the risk shall pass to the Purchaser as soon as the Purchaser has been notified in text form that the goods are ready for dispatch.

§ 8 - Retention of title

(1) We retain title to the delivered item until full payment of all claims arising from the delivery or purchase contract.
This also applies to all future deliveries, even if we do not always expressly refer to this.
We are entitled to take back the object of sale if the customer behaves in breach of contract.

(2) As long as the ownership has not yet passed to him, the purchaser is obliged to treat the object of sale with care.
If maintenance and inspection work has to be carried out, the customer shall carry this out in good time at its own expense.

(3) The customer is entitled to resell the goods in the normal course of business.
In this case, we expressly assert an extended reservation of title (reserved goods).
The purchaser hereby assigns to us the claims of the customer arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value added tax).
This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing.
The customer remains authorised to collect the claim even after the assignment.
Our authority to collect the claim ourselves remains unaffected.
However, we shall not collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
If the customer acts in breach of contract towards us, we can demand that the customer informs us of the assigned claims and the respective debtors, hands over all documents to us and provides us with all information in text form that we require to assert the claim and informs the respective debtors of the assignment.

(4) The processing or transformation of the goods subject to retention of title by the customer shall always be carried out in our name and on our behalf.
In this case, the expectant right of the customer to the goods subject to retention of title shall continue to apply to the transformed item.
If the reserved goods are processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our reserved goods to the other processed objects at the time of processing.
The same shall apply in the event of mixing.
If the mixing takes place in such a way that the item of the customer is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis and keeps the sole ownership or co-ownership thus created for us.
In order to secure our claims against the purchaser, the purchaser also assigns to us such claims against a third party which accrue to him through the combination of the reserved goods with a property; we accept this assignment already now.

(5) The customer is not entitled to pledge the reserved goods to third parties or to assign them by way of security.

(6) In the event of a seizure of goods subject to retention of title or other interventions by third parties on goods subject to retention of title delivered by us, the orderer shall immediately notify the third party in text form of our right of ownership and at the same time notify us in text form so that we can assert and enforce our rights.
Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO (German Code of Civil Procedure), the orderer shall be liable for the loss incurred by us.

(7) We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20 percent.

§ 9 - Warranty

(1) The statutory warranty is reduced to twelve months.
The above provision shall not apply insofar as the German Civil Code mandatorily prescribes longer periods.

(2) Claims for defects shall only apply provided that POWERTECH International, the responsible installer (with a valid training certificate) or an authorised service company (with a valid training certificate) is informed immediately after the malfunction occurs.
Claims for defects do not include faults or malfunctions that occur after components have been replaced or serviced by an unauthorised company.

(3) Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear as well as in the case of damage which occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating resources or due to special external influences which are not assumed under the delivery or purchase contract.
If the purchaser or a third party carries out improper repair work or changes, there shall also be no claims for defects for these and the resulting consequences.

(4) Claims by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a place other than the customer's branch office, unless the transfer is in accordance with their intended use.

(5) The Purchaser's right of recourse against us shall only exist insofar as the Purchaser has not entered into any agreements with its customer that go beyond the statutory mandatory claims for defects.
Furthermore, paragraph 4 shall apply accordingly to the scope of the purchaser's right of recourse against the supplier.

(6) In the event of fraudulent concealment of a defect, the rights of the Purchaser shall be governed exclusively by the statutory provisions.

(7) No goods may be returned to us without our prior consent and application for a return authorisation number (RMA number).
Goods returned for credit must be "as new" so that they can be reinstated in our stock and resold.
A minimum of 25 per cent restocking fee will be charged for unused goods returned to us - subject to any deviating arrangement made in text form.

§ 10 - Manufacturer's warranty

(1) We provide a warranty for three months or 500 engine operating hours, whichever occurs first, subject to the following conditions:
1. Our warranty covers all POWERTECH systems and POWERTECH component parts (hereinafter: POWERTECH products) delivered by us.
2. we guarantee that the POWERTECH products will retain a certain quality or meet requirements other than freedom from defects described in a statement or relevant advertising that was available prior to the conclusion of the delivery or purchase contract (durability guarantee).
3. the durability guarantee shall apply from the time of the passing of risk only to the original purchaser who has purchased the POWERTECH products from an authorised POWERTECH partner.
4. the POWERTECH products must be installed by a POWERTECH partner correctly and completely and in accordance with the instructions given in the manuals or other data supplied by us in text form.
5. the POWERTECH products may not be modified after installation unless we have expressly agreed to a modification in text form.
6. due to the deleterious effects of corrosion, heat, rust, dirt, debris and other usage and installation factors beyond our control, we make no other warranties, express or implied, including for merchantability and fitness for a particular purpose beyond what is expressly covered by this durability warranty.

(2) The original purchaser must have concluded a maintenance contract for annual maintenance with an authorised POWERTECH partner, which shall commence on the date of acceptance of the POWERTECH product by the purchaser and installation of the system.
The maintenance contract must be maintained for the duration of the warranty period.

(3) The POWERTECH warranty certificate must be completed and returned to us (POWERTECH International GmbH, Carl-Benz-Straße 16 A, D-35305 Grünberg) within thirty days after installation of the POWERTECH system.

(4) This durability guarantee shall lapse if defects occur due to inadequate servicing, installation, maintenance, alterations of any kind after installation without our express permission given in text form or due to intentional or negligent acts of the original purchaser or third parties.

(5) Unless otherwise expressly agreed with us in text form, we undertake towards the original purchaser to repair the POWERTECH product or to replace the defective part at our discretion.
The defective part must be returned to us within ten days of discovery of the defect in compliance with § 9 (7) sentence 1.

(6) Our durability guarantee cannot be transferred, passed on or sold in any form and it only applies to the original purchaser.

(7) In none of the above-mentioned cases of non-activation, non-granting or cancellation of the durability guarantee shall the original purchaser have the right to demand the dissolution of the delivery or purchase contract, compensation for damage suffered or an extension of the guarantee.
Any warranty conditions to the contrary must be agreed in text form and must have been signed by the contracting parties.

(8) If a third party has its own manufacturer's warranty for individual parts of the goods delivered by us, the customer shall have the right to assert any warranty claims directly against this manufacturer, if applicable.

§ 11 - Liability

(1) Unless otherwise stipulated in these terms and conditions, we shall only be liable for damages due to breach of contractual or non-contractual obligations in the event of intent or gross negligence.
However, we shall only be liable for intent and gross negligence of non-managerial vicarious agents if they breach a material contractual obligation.

(2) We shall not be liable for any incidental or consequential damages arising out of the purchase and/or use of POWERTECH products, including, but not limited to, damages resulting from loss of use of POWERTECH products, costs of disabling fire suppression system, consequential costs of machine downtime, damages resulting from loss of profits or revenue, or damages resulting from property damage to non-POWERTECH products.

(3) Excluded from the limitation of liability according to paragraphs 1 and 2 is the liability for damages resulting from injury to life, body or health as well as the liability according to the Product Liability Act.

§ 12 - Right of withdrawal

(1) If the fulfilment of the delivery or purchase contract is endangered, significantly impeded or made impossible by an unforeseeable event, we shall be entitled to withdraw from the contract without granting compensation.

(2) In these cases, the purchaser can demand a declaration from us as to whether we will withdraw or deliver within a reasonable period of time.
If we do not make a declaration after a corresponding request, the customer may withdraw from the delivery or purchase contract.

(3) Unforeseeable events are such circumstances which we cannot avert with reasonable care according to the circumstances of the case, e.g. war, monetary and trade policy or other sovereign measures, civil unrest, forces of nature, fire, strikes, lockouts, pandemics, accidents, non-delivery of input material through no fault of our own, traffic and operational disruptions and other cases of force majeure.

§ 13 - Applicable law, final provisions

(1) The delivery and purchase contracts concluded by us and the entire legal relationship between the parties shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) For the interpretation of the delivery clause, the "INCOTERMS" laid down by the International Chamber of Commerce shall apply in their latest version in each case.

(3) The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office.

(4) All agreements made between the parties for the purpose of executing a delivery or purchase contract must be recorded in this contract in text form.

(5) If individual provisions of this delivery or purchase contract are or become ineffective or contain a loophole, the remaining provisions shall remain unaffected.
The invalid provision shall be replaced by a provision that comes closest to what the parties intended.

(6) We expressly point out that we use personal data of the customer, which we collect, store and process within the scope of our business activities by means of automatic data processing, exclusively within the scope of the Basic Data Protection Regulation (DS-GVO) for the fulfilment of a delivery or purchase contract, for the implementation of pre-contractual measures or for the exercise of legitimate interests (see our Data Protection Declaration).