However, the period of limitation under sentence 1 and sentence 2 does not apply in cases under Section 438 para. 1 no. 1 of the German Civil Code (legal defects in immovable items), Section 438 para. 1 no. 2 of the German Civil Code (buildings, items for buildings), Section 479 para. 1 of the German Civil Code (recourse claim of entrepreneur) or Section 634a para. 1 no. 2 of the German Civil Code (buildings or work of which the aim is the provision of planning or supervisory services). Similarly, the limitation periods under this no. 1 sentences 1 and 2 do not apply in cases of intent, gross negligence, malicious concealment, provision of a guarantee for the nature of our goods – which must be expressly agreed – or for damages claims for loss of life, bodily injury or damage to the health or freedom of a person, claims under the Product Liability Act or for a breach of major contractual obligations. Statutory periods of limitation apply to the claims under this no. 1, sentences 3 and 4. 2. If nothing has been expressly specified to the contrary, statutory provisions on the beginning of the period of limitation and on the suspension, stay and resumption of set periods are not prejudiced. 3. The above rulings do not constitute any change in the burden of proof to the disadvantage of the purchaser. XI. Payments 1. a) Our invoices are payable on receipt without any deductions. If the purchaser fails to make payment, he will be deemed in default 10 days after the date on which payment was due without any further notification from us and no later than when we sent him a reminder. When the purchaser is in default, we have the right to charge interest on default at a rate 8 percentage points above the European Central Bank basic interest rate. The right is reserved to claim further dam- ages. b) Any terms of purchase of the purchaser which provide for an interest rate higher than the statutory one for any payments by us are hereby expressly refuted. 2. If the purchaser is in default on payment for earlier deliveries or if, after the contract has been made, the financial position of the pur- chaser deteriorates significantly so that our claim for counter- performance is jeopardised, payment shall be required progressively against delivery of the goods. The purchaser can avoid the necessity of progressive payment by furnishing security to the amount of the purchase price. In the event of default on payment, we also reserve the right to with- hold further deliveries until all due invoices have been settled. 3. If the purchaser has an obligation to pay damages under these terms or under legal provisions, we can, without providing evidence, require damages amounting to 25 % of the purchase price plus statutory turnover tax at the rate then applicable. Higher or lower damages can be specified if we provide evidence of higher losses or the purchaser provides evidence of lower losses. 4. We expressly reserve the right to accept bills of exchange or cheques. Bills of exchanges, payment orders and cheques are only accepted on account of performance and not instead of performance. Any costs incurred will be paid by the purchaser. 5. The purchaser has no withholding right, unless it is based on the same legal contractual relationship. 6. The purchaser has no offsetting right, unless offsetting is against an undisputed claim or a claim confirmed in final legal proceedings. 7. Any assignment of claims is subject to our consent. XII. Security rights 1.a) We reserve the right of title of the delivery items (goods subject to reservation) until all liabilities resulting from the supply contract have been met in full insofar as permissible under the law in the area in which the supplied item is located. If said law does not permit such a reservation of title but allows the seller to reserve other rights to the goods, we shall be permitted to exercise all rights of this kind. The purchaser has an obligation to co-operate in any measures that we plan to take to protect our property right or another right to the goods in its stead. Supplied goods shall also be subject to reservation of title until all other claims existing between us and the purchaser have also been settled. b) The purchaser has an obligation to keep the reserved goods care- fully for us, to maintain them in a technically perfect condition and to perform, or arrange for performance of, maintenance, servicing and repair work in due time at the purchaser's cost if necessary. In particu-
lar, the purchaser must insure such goods adequately at reinstatement value at his own expense, such insurance being against damage by fire, water, tempest, burglary and theft. Any security claims arising in the event of losses are to be assigned to us. The reserved goods may only be repaired by our fitter, except in emergencies. Only original SMW-Autoblok parts are to be used. c) Goods supplied subject to reservation of title may be sold by the purchaser in the course of due business. If the purchaser sells goods subject to reservation of title in the course of due business, he shall, on receipt of the order, assign to us the part of his claim against the third party which corresponds to the value of the goods that we sup- plied. There will be assignment of claims existing between the pur- chaser and the third party on the basis of works contracts, supply contracts and service contracts. No separate statement of assignment is required. For as long as the purchaser duly meets his payment obligations to us, he is authorised to collect such claims on our behalf. If the purchaser is in default, we have the right to disclose such as- signment to the third party at any time. The purchaser has an obliga- tion to give notification of any prohibition of assignment agreed with the third party on placement of the order. If the purchaser fails to meet this obligation or if the third party does not approve the agreed as- signment, we shall be released from our supply obligation. d) The purchaser undertakes to provide us at our request with an exact list of the claims to which we are entitled, with the names and ad- dresses of the customers, amounts of each claims, dates of invoices, etc., to supply us with all the necessary information for asserting the assigned claim, to permit verification of such information and to disclose the assignment to the customers. 2. If the purchaser uses the goods we supply to produce a new mov- able item, the following additional provisions shall apply: In relation to the production of such items, we are deemed the pro- ducer as defined in Section 950 of the German Civil Code and acquire the title to the intermediate or final products. If the new item includes other materials not supplied by us, our joint title is determined by the ratio of the value of the goods supplied by us to the other materials. The processed goods will serve to secure all claims resulting from the business relationship on any legal grounds whatsoever. The purchaser is no more than the keeper of the goods produced in this way. He has the right to sell the product produced in this way in the due course of business. He hereby assigns to us the claims against third parties resulting from resale or for any other legal reason, this being as security and to the amount of the partial value of the reserved goods to which we are entitled. For as long as the purchaser duly meets his payment obligations to us, he is authorised to collect such claims on our behalf. In this case too, we have the right to give notification of assignment in the event of default. 3. a) Any attachment of the assigned claims must be reported imme- diately. b) The purchaser must notify us immediately in the event of seizure or other impairments of our interests as owners, 4. If the realisable value of all the security rights held by the customer exceeds the amount of all secured claims by more than 10%, we will release an appropriate share of the security rights at the purchaser's request; we have the right to choose between the different security rights. 5. If the purchaser breaches the contract, in particular if he is in default on payment, we have the right to repossess the goods supplied. The repossession or seizure of the goods by us does not constitute rescission of the contract, unless we expressly confirm in writing that this is the case. We have the right to sell the goods. The proceeds of sale will be credited to the purchaser's liabilities, with deduction of reasonable selling costs. 6. The purchaser hereby gives his consent that the persons commis- sioned by us to repossess the goods may enter, either on foot or in a vehicle, the site or the building on or in which the reserved goods are located, for the purpose of repossessing the goods. XIII. Confidentiality If the purchaser gains knowledge of our business secrets and/or know how during performance of the order, he shall treat the same as confi- dential and must take appropriate action to ensure that our protectable interests are not infringed and protectable knowledge is only used in connection with the order or, respectively, later use of the ordered item itself. In particular, the purchaser bears the burden of proof that
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General Terms of Sale and Supply of SMW-electronics GmbH in Meckenbeuren, status March 2023
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