Kludi Espirit 2013

(4) If the Purchaser wishes, we shall cover the delivery by means of transport insurance; the
Purchaser shall bear the costs incurred in this respect.
§ 7 Warranty for defects
(1) It shall be a precondition of warranty claims by the Purchaser that the latter has carried
out its obligations of examination and giving notice of defects pursuant to § 377 HGB in
due form. We shall not be liable for misuse or unsuitable use, in particular excessive operational
demands, faulty installation or incorrect use by the customer or third parties, natural
wear (wear and tear), incorrect and careless treatment and handling, in particular by untrained
personnel.
(2) If there is a defect in the purchased item for which we are responsible, the purchaser
shall be entitled at its option to request subsequent performance in the form of the
remedying of the defects or the delivery of a new item which is free of defects. If the
defects are to be remedied, we shall be obliged to bear all the expenses necessary for the
purpose of remedying the defects, in particular transport, travelling, labour and material
costs, provided that these are not increased as a result of the purchased item having
been taken to a place other than the place of performance.
(3) If the subsequent performance is unsuccessful, the Purchaser shall be entitled at its option
to request withdrawal or reduction of the price.
(4) We shall bear liability in accordance with the statutory provisions provided that the
Purchaser asserts claims for compensation that are based on a deliberate act or gross
negligence, including a deliberate act or gross negligence on the part of our representatives
or agents. Provided that no intentional infringement of the contract is imputed
to us, our liability for damages is limited to foreseeable damage that typically occurs.
(5) We shall bear liability in accordance with the statutory provisions if we culpably infringe
a substantial contractual obligation; however, in this case our liability for damages shall
be limited to foreseeable damage that typically occurs.
(6) If the Purchaser is entitled to claim compensation for the damage instead of performance,
our liability is also limited within the scope of paragraph 3 to compensation for
foreseeable damage that typically occurs.
(7) Liability for culpability in fatal injury, bodily injury or injury to health shall not be affected;
this shall also apply to mandatory liability under the German Product Liability
Act [Produkthaftungsgesetz].
(8) If no differing provisions have been made above, liability is excluded.
(9) The limitation period for warranty claims shall be 12 months, calculated from the time
of transfer of risk.
(10) The limitation period in the case of delivery recourse pursuant to § 478 and § 479
BGB shall not be affected; it shall be no more than 5 years, calculated from the time of
delivery of the defective item.
§ 8 Joint liability
(1) Any more wideranging liability for compensation than that provided for in § 6 is excluded,
regardless of the legal nature of the asserted claim. This applies in particular to
claims for compensation arising from faults on conclusion of the contract, by reason of
other breaches of obligations or by reason of tortious claims for compensation for damage
to property pursuant to § 823 BGB.
(2) In so far as liability for compensation is excluded or limited with regard to us, this also
applies with regard to the personal liability for compensation of our salaried employees,
persons in our employ, members of staff, representatives and agents.
§ 9 Returned goods
(1) Returns of the purchased item are excluded, except in cases specified in § 7.
(2) Purchased items returned without our approval will not be accepted or will be sent back
to the purchaser at the latter’s expense.
(3) If in a particular instance we agree to the return by way of exception after prior written
agreement, we will charge a handling fee of at least 30% of the net value of the goods,
as applicable.
(4) The risk of transport and the transport costs shall be borne by the purchaser.
§ 10 Reservation of ownership
(1) We reserve the right of ownership in respect of the purchased item until such time as
all payments arising from the supply contract have been received. In the event of the
Purchaser taking actions that breach the contract, in particular in the event of a delay in
payment, we shall be entitled to take back the purchased item. If we take back the purchased
item this does not constitute withdrawal from the contract unless we expressly
declare such withdrawal in writing. If we take the purchased item in seizure, this shall
always constitute withdrawal from the contract. After taking back the purchased item,
we shall be authorized to utilize it; the proceeds of the utilization are to be credited
against the Purchaser’s debts, deducting appropriate utilization costs.
(2) The Purchaser shall be obliged to treat the purchased item carefully; in particular it shall
be obliged to insure the item adequately for its replacement value at its own expense
against damage by fire, water and theft. If maintenance and inspection work is required,
the Purchaser must carry out the work in good time at its own expense.
(3) In the event of attachments or other encroachments by third parties, the Purchaser
must inform us in writing without delay, so that we can institute an action in accordance
with § 771 ZPO [German Code of Civil Procedure]. If the third party is not able
to repay to us the costs, in and out of court, of a legal action in accordance with § 771
ZPO, the Purchaser shall be liable for the shortfall we incur.
(4) The Purchaser shall be entitled to resell the purchased item as part of the ordinary
course of business; however, it shall assign to us now all receivables, in the amount of
the final invoice amount agreed with us (including purchase tax) which we are entitled
to claim, that accrue to it from the resale from its purchaser or third parties; this
shall apply irrespective of whether the purchased item has been resold without having
been processed or after processing. The Purchaser shall retain authorization to recover
this debt even after the assignment. This shall not affect our authorization to recover
the debt ourselves. However, we undertake not to recover the debt as long as the Purchaser
satisfies its payment obligations from the proceeds received, does not default
on payment and in particular as long as no application is made to institute bankruptcy
proceedings, composition proceedings or insolvency proceedings and there is no suspension
of payments. However, if this is the case, we can demand that the Purchaser notifies
us of the assigned receivables and the debtor involved, supply all the information
necessary for recovery, hand over the associated documents and inform the debtors
(third parties) of the assignment.
(5) Any processing or reconstruction of the purchased item undertaken by the Purchaser
shall in all cases be undertaken for us. If the purchased item is processed using other
articles that do not belong to us, we shall acquire joint ownership of the new article
according to the ratio of the objective value of the purchased item (final invoice amount
including purchase tax) to the other processed articles at the time of processing. Moreover,
the same terms shall apply to the article which has been produced as a result of the
processing as to the conditionally supplied purchased item.
(6) If the purchased item is inseparably admixed with other articles that do not belong
to us, we shall acquire joint ownership of the new article according to the ratio of the
objective value of the purchased item (final invoice amount including purchase tax) to
the other admixed articles at the time of admixture. If the admixture takes place in such
a way that the Purchaser’s article is to be regarded as being the main article, it is agreed
that the Purchaser shall transfer joint ownership to us proportionately. The Purchaser
shall keep safe for us the sole or joint property that has thus come into being.
(7) The Purchaser shall also assign to us, in order to safeguard our claims against it, those
claims which have accrued against a third party as a result of combining the purchased
item with a piece of real estate.
(8) On request by the Purchaser, we undertake to release the securities to which we are
entitled if the realizable value of our securities exceeds the debts to be secured by more
than 10%; we shall decide which securities are to be released.
§ 11 Applicable law place of jurisdiction place of performance
(1) If the Purchaser is a businessman, our place of business shall be the place of jurisdiction.
However, we shall also be entitled to take legal proceedings against the Purchaser in
another lawful place of jurisdiction.
(2) The laws of the Federal Republic of Germany shall apply; any applicability of UN sales
law shall be excluded.
(3) Provided that no contrary arrangements are made in the order confirmation, our place
of business shall be the place of performance.
(4) Should any individual provisions be ineffective or lose their effectiveness as a result of
circumstances arising later, this shall not affect the effectiveness of the other provisions.
Kludi GmbH & Co. KG
Date: January 2011
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