1.1 The following General Terms and Conditions apply to all offers, deliveries and services and to all claims, regardless of their legal basis, arising between Edgetech Europe GmbH (hereinafter referred to as "Edgetech") and its contracting partners (hereinafter referred to as "Customer(s)") in connection with the commercial relationship, insofar as the Customer is an entrepreneur within the meaning of Sec. 14 of the German Civil Code (BGB) and is acting in exercise of its commercial or independent professional activities.
1.2 Any conflicting conditions of the Customer that deviate from or supplement these General Terms and Conditions, such as general terms and conditions or conditions of purchase, are hereby rejected unless they have been explicitly accepted by Edgetech. No such conditions shall be binding on Edgetech, regardless of any explicit and individual rejection of these conditions by Edgetech.
1.3 All agreements reached between Edgetech and the Customer with the aim of executing a contract will be set out in writing in the relevant contract. Edgetech’s commercial representatives and salespersons are not entitled to agree to any terms that deviate from Edgetech’s terms of delivery and payment. Any oral agreements reached with commercial representatives or salespersons must be confirmed in writing by Edgetech in order to be valid.
2. Conclusion of contracts, scope of deliveries
2.1 All offers issued by Edgetech are subject to confirmation and not binding.
2.2 Contracts shall only be valid and binding after Edgetech has declared its acceptance of the offer in writing (order confirmation). Edgetech can accept orders within a period of two weeks from the date of the order.
3. Documentation made available to the Customer
Edgetech retains title and copyright in all documentation made available to the Customer in connection with offers, contract negotiations and the placing of an order, such as, for example, calculations, drawings and the like. This documentation must be kept confidential and may not be made available to third parties unless Edgetech has given its express prior written consent to the Customer. When the documentation is no longer needed by the Customer in the ordinary course of business, or in the event that no contract is concluded, or that the contract is cancelled, such documentation is to be returned to Edgetech immediately and any copies made thereof must be destroyed. This does not apply to the storage of data provided electronically for customary data backup purposes.
4. Prices and payment
4.1 Unless otherwise agreed in writing, our prices are understood as being ex works inclusive of storage packing plus value-added tax at the current statutory rate where applicable. The Customer shall bear any customs duties, fees, taxes and other public charges triggered by the purchase or export. Edgetech may charge separately to the Customer any costs of additional transport packing in order to make the goods ready for dispatch or pickup by a carrier.
4.2 All payments are to be made to Edgetech directly and to the account indicated in the order confirmation. Edgetech’s commercial representatives and salespersons are not authorized to receive payments except in individual cases if and when they have Edgetech’s specific written authority to do so.
4.3 In all cases, the terms of payment shown in the order confirmation shall be applicable. Default interest shall accrue at the statutory rate of default interest as applicable from time to time. In addition, the Customer must pay a lump-sum amount of EUR 40 in the event of default in payment. We reserve the right to claim any additional damage caused by default.
4.4 In the case of deliveries that, upon the Customer’s request or in accordance with the agreed binding delivery date or the agreed binding delivery period, are made four or more months after conclusion of the contract, Edgetech will be entitled to adjust prices such that they reflect any increase in costs of labor or materials.
5. Offsetting and rights of retention
5.1 The Customer may offset against Edgetech’s claims only if the Customer’s counterclaims have been confirmed by a final court decision or are undisputed.
5.2 The Customer may exercise a right of retention only if this is based on a claim arising from the same individual contract as Edgetech’s claim in respect of which the right of retention is exercised. A right of retention that is based on a Customer’s claim for payment against a claim for payment of Edgetech may be exercised only if the Customer’s claim for payment is undisputed or has been confirmed by a final court decision.
6. Delivery, delivery dates
6.1 All periods and dates promised by Edgetech for the delivery of goods and the provision of services shall be approximate periods and dates only, unless the parties expressly agreed on a binding delivery period or a binding delivery date.
6.2 Edgetech is only obliged to deliver the goods concurrently (Zug um Zug) with the payment of the purchase price. Edgetech’s observance of delivery dates requires the timely and orderly fulfilment by the Customer of all of its obligations and responsibilities. Edgetech reserves the defense of non-performance of the contract.
6.3 If, in the individual case, Edgetech has undertaken to the Customer to make advance deliveries, and if, however, Edgetech may reasonably expect that its purchase price claim against the Customer is at risk due to the Customer's inability to pay, Edgetech shall be entitled to make deliveries only against payment in cash, advance payment or after the provision of security. If the Customer, upon Edgetech's payment request setting a reasonable deadline, fails to either pay or to provide security within that deadline, Edgetech is entitled to rescind the contract. Edgetech's right to rescind the contract shall apply accordingly if the Customer changes its legal form after the conclusion of the contract, unless the Customer proves upon Edgetech's request and to Edgetech’s satisfaction within the set deadline that it can fulfil Edgetech’s legitimate payment claims within the term of payment.
6.4 Unless otherwise agreed in writing, the delivery date is deemed to be the date on which the goods are made available for collection by the Customer or for dispatch to the Customer at Edgetech’s warehouse. Edgetech will notify the Customer of this availability. If dispatch has been agreed, the delivery periods and delivery refer to the point in time when the goods are handed over to the forwarder, carrier or any other third party contracted to transport the goods.
6.5 The goods will be dispatched to a location other than the place of performance (No. 12.2) only if this has been explicitly requested by the Customer and at the Customer's expense (sales shipment / Versendungskauf).
6.6 Edgetech shall be entitled to make partial deliveries in cases where this is reasonably acceptable for the Customer taking Edgetech’s interests into account. Partial deliveries are deemed reasonably acceptable especially if and when the Customer can use the delivered goods for the contractual purpose, if the delivery of the remainder of the ordered goods is secured and if the Customer will not incur any considerable additional costs or expense as a result, unless Edgetech agrees to bear such costs and expenses.
6.7 Two weeks after the expiry of a delivery date promised in the order confirmation (cf. No. 6.1), the Customer shall be entitled to remind Edgetech and set a deadline for the delivery. Edgetech will be in default only based on such a reminder. This shall not apply if Edgetech and the Customer agreed on a binding delivery date or period.
6.8 Edgetech shall not be liable in cases of impossibility of, or delays in, delivery or performance if they are caused by force majeure or other events that were not foreseeable at the time the contract was concluded, such as disruptions of operations of any kind (including strikes, lawful lock-outs, a shortage of labor), difficulties in procuring materials or energy, delays in transportation, interventions of authorities, difficulties in procuring necessary governmental approvals and similar circumstances, for which Edgetech is not responsible. If Edgetech’s delivery is temporarily impeded by any such circumstances or because the Customer has yet to provide cooperation or information, agreed delivery dates and delivery periods shall automatically be extended by the duration of the impediment plus a reasonable start-up period after the end of such impediment. Edgetech undertakes to notify the Customer of any such impediments. Statutory rights of rescission of the contract because of delivery delays, which exist regardless of fault by the seller, shall remain unaffected.
7. Default in delivery
7.1 In the event of default in delivery, Edgetech shall be liable to pay a lump sum default compensation equivalent to 1% of the (net) value of the delivery for each full week of default, but in aggregate no more than 5% of the (net) value of the delivery.
7.2 Possible claims for compensation of a loss caused by default in excess of this lump sum default compensation and all other statutory claims and rights of the Customer because of default in delivery shall remain unaffected. These claims and rights shall be subject to the restrictions as set out in No. 11 below.
8. Passing of risk, default in acceptance of the Customer
8.1 Unless otherwise stated in the order confirmation, delivery is understood to be on an ex works basis. The risk of accidental destruction and accidental deterioration of the goods shall pass to the Customer upon handover, at the latest.
8.2 If the Customer requests the shipment of the goods, the risk of accidental destruction or accidental deterioration of the goods shall pass to the Customer already at the time of handover of the goods to the forwarder, carrier or any other parties contracted to transport the goods.
8.3 If, in case of goods made available at Edgetech’s warehouse, the goods are not collected by the delivery date stated in the order confirmation for reasons attributable to the Customer, or if the dispatch of the goods is delayed on the Customer’s request or for reasons attributable to the Customer, Edgetech shall store the goods at the Customer's risk and expense. In these cases, the risk of accidental destruction or accidental deterioration of the goods shall pass to the Customer on the delivery date stated in Edgetech’s order confirmation, or on the date on which Edgetech has informed the Customer that the goods are ready for dispatch.
8.4 Handover of the goods shall also be deemed to have occurred if and when the Customer is in default of acceptance.
9. Retention of title
9.1 Edgetech shall retain title to all goods supplied to the Customer until all payment obligations arising from the entire commercial relationship with the Customer, including all future, conditional and time-limited obligations, have been fulfilled.
9.2 Any processing or transformation of the goods by the Customer will be deemed to have been carried out on behalf of Edgetech as the manufacturer, but without any liability for Edgetech. If the goods are processed with, or transformed using, other goods not owned by Edgetech, Edgetech shall acquire co-ownership rights in the new item in the proportion of the value of the goods supplied by Edgetech to the total value of the new item. If the goods supplied to the Customer are inseparably combined or intermixed with other goods not owned by Edgetech, Edgetech shall acquire co-ownership rights in the single (undivided) item in the proportion of the value of the goods supplied to that of the other combined or intermixed goods as at the date of combination or intermixture. If the combination or intermixture is carried out in such a manner that goods of the Customer are to be seen as the main item, it shall be understood that the Customer assigns to Edgetech a proportional right of co-ownership in the proportion stated above. This provision shall not apply if the goods delivered become a material fixture (wesentlicher Bestandteil) of real estate by means of combination. No. 9 of these General Terms and Conditions shall apply mutatis mutandis to the items created by such processing, transformation, combination or intermixture. Storage by the Customer of the items which are owned or co-owned by Edgetech shall be at no charge to Edgetech.
9.3 As long as title to the supplied goods has not been transferred to the Customer, the Customer shall be required to treat them with due care. In particular, the Customer is required to arrange for an as-new insurance policy to cover the risks of theft and damage by fire or water at its own expense.
9.4 The Customer shall be authorized to resell, process, intermix or combine the goods supplied subject to retention of title only in the ordinary course of business. If the Customer defers the purchase prices to its customer in full or in part, a resale in the ordinary course of business requires that the Customer, in turn, sells the goods to its customer subject to an agreed retention of title in accordance with the provisions in this No. 9.
9.5 To secure all claims of Edgetech under the entire business relationship, the Customer hereby assigns to Edgetech all claims arising from the resale of goods subject to retention of title, including value-added tax, without any separate agreements being necessary in each individual case. In the event of a resale of new or single (undivided) goods created through the processing, intermixing or combination of goods that are subject to retention of title, or in the event that the goods that are subject to retention of title become a material fixture (wesentlicher Bestandteil) of third-party real estate through combination, the resulting claims shall be assigned on a pro-rata basis in the amount of the purchase price of the goods that are subject to retention of title.
In addition, as a means of security, the Customer assigns to Edgetech in advance all claims it acquired on any other legal basis (e.g. insurance, tort) regarding goods that are subject to retention of title. The Customer shall assign all claims acquired with respect to a new or single (undivided) item created through the processing, intermixing or combination of goods that are subject to retention of title, or with respect to real estate with which such goods were combined, in each case, on a pro-rata basis in the amount of the purchase price of the goods that are subject to retention of title. Edgetech accepts the above-mentioned assignments upon the conclusion of the each contract.
9.6 Edgetech hereby authorizes the Customer to collect the claims against the purchaser referred to in 9.5 above on its own behalf for Edgetech’s account.
Edgetech’s right to collect such claims itself shall remain unaffected hereby. However, Edgetech undertakes not to collect such claims for as long as (a) the Customer complies with its payment obligations, (b) the Customer is not in default with its payments, (c) more specifically, no application for the opening of insolvency proceedings has been filed and (d) no suspension of payment situation has occurred. If any of the above conditions (a) to (d) are fulfilled, however, Edgetech may require the Customer to provide it with details of the assigned claims and their debtors, to give all information necessary to facilitate the collection of these claims, to hand over all related documentation and to notify the debtors of the assignment.
9.7 The Customer is not permitted to grant or otherwise establish any third party rights in respect of goods that are subject to retention of title of Edgetech and in respect of the assigned claims. No. 9.4 above shall remain unaffected.
9.8 Edgetech undertakes to release, at the request of the Customer, any security furnished in its favor insofar as the realizable value of such security does not only temporarily exceed the value of the secured claims by more than 10%. Edgetech may choose which items of security are to be released.
9.9 In the event of a breach of contract by the Customer, for example, default in payment, Edgetech shall be entitled to take back the goods that are subject to retention of title after having set a reasonable grace period for performance. If Edgetech takes back the goods that are subject to retention of title, this shall be deemed to constitute a rescission of contract. If Edgetech seizes the goods that are subject to retention of title, this shall likewise be deemed to constitute a rescission of contract. Edgetech shall be entitled to sell or turn to account the goods that are subject to retention of title after they have been taken back. After deducting reasonable expenses incurred for such utilization, Edgetech's proceeds shall be set off against the Customer’s liabilities. Any necessary costs incurred for taking back the goods subject to retention of title shall be borne by the Customer.
9.10 As long as title to the supplied goods has not yet transferred, the Customer undertakes to inform Edgetech immediately, by email, telefax or telephone, if the supplied goods have been seized, or are subject to interference by third parties, and to subsequently confirm this to Edgetech in writing enclosing copies of all related documentation. In the event that Edgetech is required to enforce its rights against third parties in or out of court, the Customer shall bear all necessary costs incurred by Edgetech in this regard if the enforcement was successful and, should the third party be the debtor of legal costs, if the costs cannot be recovered from the third party.
10. Warranty and notice of defects
10.1 The Customer shall have warranty claims only if it has properly met the requirements of performing inspections and giving notice of defects pursuant to Sec. 377 of the German Commercial Code (HGB). Obvious defects are to be notified to Edgetech without undue delay, but no later than 14 days after the delivery of the goods; hidden defects are to be notified in writing without undue delay after being discovered. Any building products and other goods designated for fitting or other processing purposes must be examined in any case immediately prior to processing. Otherwise, the goods are deemed to be approved. Furthermore, in order to safeguard its rights vis-à-vis Edgetech in respect of warranty for defects in quality (Sachmängel), the Customer must notify Edgetech immediately of any notice of defects received from its customers in respect of goods supplied by Edgetech. Sec. 377 HGB shall apply mutatis mutandis. Transportation damage is to be notified to the carrier without undue delay.
10.2 If and insofar as limits for deviations have not been expressly agreed, the rights set out in Sec. 437 BGB shall not apply to cases of minor deviations from any agreed or customary quality standards, provided that such deviations do not impair usability.
10.3 In the event of defects in the supplied goods, Edgetech shall have the opportunity for inspection of the goods and subsequent performance within a reasonable period of time. Edgetech shall be entitled, at its option, either to repair or to replace the defective goods. If Edgetech replaces the defective goods, it may demand the return of the defective goods. Prior to any return of the goods, Edgetech’s consent is to be obtained. Edgetech shall be entitled to make any subsequent performance conditional on the Customer's payment of the due purchase price. The Customer, however, shall be entitled to withhold a reasonable portion of the purchase price to account for the defect.
10.4 The Customer's claims for reimbursement of expenses necessary for such subsequent performance, in particular costs for transportation, routing, labor and materials are excluded to the extent that such expenses have increased because the goods supplied by Edgetech have been transferred to a place other than the place of performance or the place of business of the Customer. The rights of the Customer pursuant to Sec. 439 para. 3 BGB shall remain unaffected.
10.5 Edgetech’s right pursuant to Sec. 439 para. 4 BGB to refuse to provide subsequent performance on the grounds that it would cause unreasonably high costs remains unaffected.
10.6 If subsequent performance fails or Edgetech refuses to make subsequent performance because the prerequisites of Sec. 439 para. 4 BGB have been met, the Customer shall be entitled – without prejudice to any claims for damages – to rescind the contract or to reduce the purchase price.
10.7 Any claims for damages asserted by the Customer because of defects in the purchased goods shall be subject to the restrictions set out in No. 11 below. These restrictions shall apply mutatis mutandis if the Customer requests reimbursement of futile expenses in lieu of a claim for damages.
10.8 The Customer may only take recourse against Edgetech for claims made by its own customers (recourse against suppliers) in respect of goods supplied by Edgetech if, under the contract with Edgetech, it has a warranty claim against Edgetech, and insofar as the claims of the Customer's customers do not exceed the compulsory statutory warranty claims, and insofar as the Customer has not waived its customers' duty to inspect delivered goods and give notice of defects in accordance with Sec. 377 HGB. Moreover, as regards the scope of the relevant recourse claim held by the Customer against Edgetech, No. 10.4 above shall apply mutatis mutandis. The provisions of this No. 10.8 shall not affect the statutory provisions of Sec. 478 BGB governing final delivery of unprocessed goods to a consumer even if such consumer further processed the goods. Any claims to recourse against suppliers shall be excluded if the defective goods have been further processed by the purchaser or another entrepreneur, e.g., by installing them into another product.
10.9 The Customer’s claims in respect of warranty for defects in quality shall become time-barred 12 months after delivery of the goods supplied by Edgetech. Insofar as longer periods of time are provided for in Sec. 438 para. 1 No. 2 BGB, Sec. 445b BGB, Sec. 779 para. 1 BGB and Sec. 634a BGB, these shall remain unaffected.
10.10 The provisions of this No. 10 shall not apply in cases where Edgetech has fraudulently concealed the defect or granted a guarantee for the quality of the item. In these cases, the Customer’s claims shall be governed by applicable statutory law.
11.1 Regardless of the legal basis, Edgetech’s liability shall be subject to the following provisions:
a) Edgetech shall be fully liable in respect of willful conduct by Edgetech, its legal representative or vicarious agents;
b) in the case of gross negligence by any of Edgetech’s board members or senior officers, Edgetech’s liability shall be limited to typically foreseeable damage that should have been prevented by the respective duty of care that was breached;
c) in the case of gross negligence by ordinary vicarious agents, Edgetech shall be liable only for breach of a material contractual obligation, the breach of which would jeopardize the fulfillment of the purpose of the contract, because the performance of the material contractual obligation is indispensable in order to make proper performance of the contract possible, which is why the Customer relies, and may rely, on its performance (also referred to as a “cardinal obligation”); in such case, Edgetech’s liability shall be limited to typically foreseeable damage that should have been prevented by the respective duty of care that was breached.
d) In other cases – except for those indicated in No. 11.2 below – Edgetech shall be liable only in the event of breach of a cardinal obligation; however, in such case, liability shall be limited to typically foreseeable damage that should have been prevented by the respective duty of care that was breached.
11.2 The limitations of liability set out in this No. 11 do not apply to liability for damages from injury to life, body, or health, or liability under product liability law. Other cases in which applicable law provides for liability regardless of fault shall also remain unaffected.
11.3 The limitations of liability provided for in this No. 11 shall also apply in favor of Edgetech’s legal representatives, employees and other vicarious agents.
11.4 The limitations of liability provided for in this No. 11 shall also apply to the extent that liability exists vis-à-vis persons other than the Customer and their legally protected interests to the extent that such persons or their legally protected interests are protected under the contract concluded with the Customer.
12. Place of jurisdiction, place of performance, applicable law
12.1 The exclusive place of jurisdiction shall be the registered seat of Edgetech if the Customer is a merchant. However, Edgetech shall be entitled to sue the Customer before the court that has local jurisdiction at the Customer’s place of business.
12.2 The place of performance for all rights and obligations of both parties arising from the contract shall be the registered seat of Edgetech.
12.3 The present contract shall be governed by the laws of the Federal Republic of Germany, excluding the rules on conflict of laws; the application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded.
Edgetech Europe GmbH - 01.06.2021