General Terms and Conditions of Business

1. Scope of Application

1.1 These General Terms and Conditions of Business (GTC) remain in effect for the duration of the business relationship between enders GmbH and the Customer for any and all services that are to be performed by enders GmbH. They also apply to any and all future business transactions with the Customer.

1.2 These GTC apply exclusively; Customer’s GTC contrary to, or deviating from, these Terms and Conditions of Business are not accepted unless enders GmbH has explicitly agreed in writing to their application. Our GTC also apply even if we make delivery without reservation in awareness of Customer’s terms and conditions that are contrary to, or deviate from, our Terms and Conditions.

2. Quotations and Documents

2.1 Quotations submitted by enders GmbH are subject to change until the final order confirmation has been issued.

2.2 The Customer’s order is a binding offer that we may accept within one week by issuing an order confirmation.

2.3 enders GmbH retains unlimited utilisation rights based on title of ownership and copyrights to cost estimates, drawings, utilisation proposals and other documents. These documents may be made accessible to third parties solely with the prior written consent of enders GmbH.

3. Prices/Terms and Conditions of Payment

3.1 Prices may be agreed as binding fixed prices, as target prices and on an hourly basis; they are always shown excluding value-added tax.

3.2 If the scope of any contracted service is altered during the performance of the service by mutual agreement, especially if it is expanded, enders GmbH may request a corresponding adjustment of the agreed prices and remuneration, in particular their increase. A unilateral alteration of the contracted performance by the Customer is precluded.

3.3 Unless otherwise agreed, enders GmbH is entitled to request at its discretion a reasonable advance payment and to issue section by section partial invoices for contracted services that have been performed or on the basis of the progress of the performance.

3.4 All invoices issued by enders GmbH are due and payable net 14 days after issue.

3.5 The Customer is entitled to offset counterclaims only if and when such claims have been finally adjudicated, are undisputed or have been acknowledged by enders GmbH. The Customer is authorised to exercise a right of retention only if and when its counterclaim is based on the same contractual relationship.

4. Shipping and Passing of Risk

Unless otherwise agreed, delivery “ex works” shall be deemed agreed. Shipment will be made by the means selected by enders GmbH at the Customer’s expense and risk. enders GmbH does not bear any responsibility for transport difficulties of any kind.

5. Dates/Cooperation Obligations

5.1 If no dates have been agreed, enders GmbH will set the dates at its own discretion.

5.2 If the Customer does not fulfil its cooperation obligations, in particular for the presentation of required documents, information and data, in good time, it will be deemed accountable for any delays.

5.3 The Customer is liable to enders GmbH for ensuring that any services it has provided and any documents, information, data and objects it has handed over in fulfilment of its cooperation obligations are free of any third-party intellectual property rights that would preclude or impair their use in accordance with the contract by enders GmbH.

5.4 In the event of strike and force majeure, the performance period will be extended for a period equivalent to the duration of the hindrance and a reasonable lead-in time. If the aforementioned circumstances make the fulfilment or performance of the service impossible or unreasonable, enders GmbH will be released from the performance obligation.

6. Confidentiality

6.1 The Customer and enders GmbH are mutually obligated to treat any and all information relating to the business and operating affairs of the other party in strict confidence and to utilise such information solely within the framework of the intended purpose of the service contracted in the specific instance. enders GmbH is entitled to pass on the information to third parties within the bounds of this intended purpose.

6.2 The confidentiality obligation will survive the performance of the contract. It will expire if and when, and to the extent that, the knowledge contained in the provided pictures, drawings, calculations and other documents enters the public domain.

7. Liability (for Defects)/Damages (Liability for Loss or Damage)

7.1 enders GmbH pays damages, regardless of the legal grounds, solely and exclusively on the basis of the principles described below.

7.2 enders GmbH is liable without limitation for loss or damage resulting from a breach of the duty of care due to wilful intent and gross negligence.

7.3 In the event of simple negligence, enders GmbH is liable for loss or damage typical of the contract and foreseeable at the time of the conclusion of the contract resulting from a breach of essential contractual obligations. Furthermore, liability is limited to €800,000 for each breach in the event of material loss or damage and pecuniary loss. In the event of loss or damage caused by equivalent breaches due to negligence, liability is limited in the aggregate to €800,000 even if the breaches occurred over a period of several years.

7.4 In all other respects, liability for damages — regardless of the legal nature of the asserted claim — is precluded. enders GmbH is in so far in particular not liable for unforeseeable loss or damage, subsequent loss or damage due to defects, other indirect loss or damage and loss or damage from lost profit.

7.5 Customer’s claims for damages are subject to a limitation period of 12 months.

7.6 Restrictions and limitations pursuant to Subsections 7.3, 7.4 and 7.5 do not apply to harm to life, body and health, to liability for warranties given in writing and pursuant to other mandatory legal provisions.

8. Utilisation Rights

Upon complete payment, enders GmbH grants to the Customer an exclusive right of indefinite term to utilise any and all works and work results developed by enders GmbH on behalf of the Customer in the scope described in the pertinent contract.

9. Retention of Title

9.1 We reserve title of ownership to the goods until full and complete payment of the purchase price as well as satisfaction of any and all other claims arising from the business relationship with the Customer that are due at the time of the conclusion of the contract (reserved goods). Any processing or transformation is carried out at all times on our behalf, but does not establish any obligations for us. If our title of ownership expires due to combination with other goods, it is agreed here and now that the Customer's title to the single object transfers proportionately in value to us. The Customer will safeguard free of charge our property established in this way.

9.2 We authorise the Customer to dispose of the goods within the course of orderly business operations, including processing or sale. It assigns to us here and now, however, any and all receivables accruing to it from its customers and third parties from a resale, processing, transformation or combination, regardless of whether the goods are resold with or without processing, transformation or other actions. The Customer remains entitled to collect said receivables even after the assignment. The above provision is without prejudice to our right to collect the receivables ourselves. However, we covenant not to collect the receivables provided that the Customer fulfils its payment obligations to us from the received income, the Customer’s assets have not significantly worsened, the Customer is not in default of payment and, in particular, no petition for the initiation of bankruptcy proceedings has been filed or the Customer is not insolvent. If, however, the aforementioned grounds or other important grounds exist, we may request that the Customer designate the receivables assigned to us and their respective debtors and provide any and all information required for their collection, that it hand over to us the pertinent documents and that it notify the debtors of the assignment. This advance assignment includes the receivable as well as any securities and any existing claim surrogates (e.g. insurance benefits). Other disposals of the goods are not permitted and obligate the Customer to damage compensation.

9.3 If the Customer is in default of payment, we are entitled, after the fruitless lapse of a subsequent period that has been set, to request return of the reserved goods. Any such action shall not be construed as rescission of the contract with the consequence that our claims remain effective in their previous scope. Our right to rescind the contract remains unaffected; rescission is subject to an explicit declaration. The declaration of rescission is not subject to the renewed/additional setting of a deadline. If we rescind the contract, we may request reasonable compensation for the period during which the use of the goods was allowed.

9.4 In the event of seizures of the goods by third parties, in particular attachments, the Customer is obligated to refer to our rights and to notify us without delay. If and when the third party is not in a position to reimburse to us any and all court or out-of-court expenses we incur relating to an objection, the Customer is liable for said costs.

9.5 The Customer is obligated to safeguard the reserved goods carefully on our behalf, to maintain them at its expense and to insure them adequately at its expense for loss and damage within the scope that can be expected of a prudent businessman. It assigns to us here and now any benefit claims from insurance policies. To the extent that maintenance and inspection work is required, the Customer shall carry out in good time any such work at its own expense unless other agreements have been concluded.

10. Place of Performance/Venue/Proper Law

10.1 Place of performance of the contracted services of enders GmbH is the headquarters of enders GmbH. Place of performance for the Customer’s payment obligations is the headquarters of enders GmbH.

10.2 This contract is governed by the laws of Germany; the application of UN sales law is precluded.

10.3 Exclusive venue with regard to contracts with merchants, legal entities of public law or special funds under public law is the competent court at our headquarters.

© enders GmbH

Last revised: 23/07/2013