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General Terms and Conditions

of delivery and payment for contracts for the purchase of elevators and elevator components via the configurator “ProKon” or in any other way of the ELEVCO GmbH (hereinafter referred to as “ELEVCO”)

  1. by persons who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs) or
  2. by legal entities under private or public law or a special fund under public law.

§ 1 General

  1. Unless overriding individual conditions or special terms of delivery and payment have been agreed, all deliveries and services shall be based on these General Terms of Delivery and Payment. Any deviating terms and conditions of purchase of the Purchaser shall not become part of the contract even by acceptance of the order.
  2. Irrespective of whether the Purchaser has requested the offer via the configurator or in any other way from ELEVCO, the contract shall be concluded upon written or configurator-based acceptance of the offer by ELEVCO.
  3. ELEVCO reserves the right to offer documents, cost estimates, drawings, samples and the like. These may not be made available to third parties. ELEVCO is obligated to provide the customer with the information required for the acceptance of the offer. In return, ELEVCO undertakes to make information and documents designated as confidential by the Purchaser accessible to third parties only to the extent required for processing the order or with the Purchaser’s consent.

§ 2 Prices and Terms of Payment

  1. The prices shall apply ex forwarding agent’s location of ELEVCO’s choice including packaging in the factory, but excluding loading and unloading – for deliveries and services not directly exported from the Federal Republic of Germany by the Purchaser, plus the applicable value added tax.
  2. The offer prices shall be determined for each individual inquiry. The contract price corresponds to the price in Euro stated in the order confirmation.
  3. Payments shall be made – unless a special agreement is made – without any deduction to the account of ELEVCO within 14 calendar days from receipt of invoice, namely:
    1. 50 % down payment after sending the order confirmation,
    2. 50 % balance payment after sending the notification of readiness for shipment.
  4. If the purchaser is in default of payment, ELEVCO shall charge interest on arrears in the amount of 9% above the respective base interest rate of the European Central Bank (ECB) p. a.
  5. The Purchaser shall only have the right to withhold payments or to offset them against counterclaims arising from other legal relationships to the extent that his counterclaims are undisputed or have been legally established.

§ 3 Offers, Acceptances, Order Confirmations and Commercial Documentation

  1. The configuration of the requested elevator systems shall be the responsibility of the orderer.

    If the configuration is carried out via the product configurator ProKon, the calculation shall be made automatically according to the information provided by the Purchaser. ELEVCO shall provide the Purchaser with the ProKon software for this purpose, by means of which these elevator systems can be configured and calculated independently and a quotation from ELEVCO can be prepared and ordered by the Purchaser.

    ELEVCO shall prepare for the Purchaser a standardized system drawing, a schematic car drawing and drawings of the car and external panels in accordance with the Purchaser’s commissioned configuration. The

    ELEVCO Geschäftsführer: Thomas Prey

    Handelsregister: HRB 20039 KI, Gerichtsstand und Sitz: Kiel / Germany Förde Sparkasse, IBAN: DE75 2105 0170 1003 3240 33

    examination of the configurations, offers and order confirmations together with all drawings and specifications shall be the sole responsibility of the Purchaser

  2. By accepting this offer the purchaser transfers the basic data from the offer to ELEVCO, which fully describe and define the equipment to be delivered.
  3. ELEVCO shall thereupon document the acceptance of the offer by issuing an order confirmation based on the offer. Data and documents deviating from the offer will not be considered. The data transmitted with the acceptance are considered as approved and released for production. An examination of the data by ELEVCO does not take place.

§ 4 Delivery, Delivery Time and Delay in Delivery

  1. Delivery of all orders shall be made “ex works” including packaging or the location of the forwarding agent of ELEVCO’s choice where the components for an order are brought together. All costs for transport (in particular also toll costs according to ABMG), insurances, export fees, loading and unloading, etc. shall be borne by the Purchaser. The risk shall pass to the Purchaser upon handover upon collection, even if partial deliveries are made.
  2. The expected delivery time results from the offer of ELEVCO. The information is non-binding and refers to the complete and clear clarification and notification of all commercial and technical requirements as specified by and to ELEVCO and assumes that the purchaser has fulfilled all obligations incumbent upon him, such as the provision of the necessary official certificates or permits or the payment of a deposit. If this is not the case, the delivery time shall be extended accordingly depending on the availability of capacities and components. This shall not apply if ELEVCO is responsible for the delay.
  3. Compliance with the delivery time shall be subject to correct and timely delivery to ELEVCO. ELEVCO shall inform as soon as possible of any emerging delays.
  4. The delivery period shall be deemed to have been complied with if the delivery item has left the factory or notification of readiness for shipment has been given before the delivery period expires.
  5. If shipment or acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, the costs incurred by the delay shall be charged to the Purchaser, starting one month after notification of readiness for shipment or acceptance.
  6. ELEVCO and the Purchaser may withdraw from the contract without notice if the entire performance becomes finally impossible for ELEVCO before the passing of risk. In addition, the Purchaser may withdraw from the contract if the execution of a part of the delivery becomes impossible in the case of an order and the Purchaser has a justified interest in refusing the partial delivery. If this is not the case, the Purchaser shall pay the contract price attributable to the partial delivery. The same shall apply in case of inability of ELEVCO. In all other respects §7 (2) shall apply.

    If the impossibility or inability occurs during the delay in acceptance or if the Purchaser is solely or predominantly responsible for these circumstances, he shall remain obligated to counter-performance.

  7. Claims arising from default in delivery shall be determined exclusively in accordance with §7 (2) of these terms and conditions.

§ 5 Changes and Cancellation

  1. The Purchaser is aware that the products of ELEVCO are standardized components and systems. Changes shall not be possible after the order has been placed.
  2. If a change of the ordered system configuration by the Purchaser becomes mandatory and if the Purchaser cancels the order, the requested changed system configuration has to be requested again, i.e. configured, calculated, offered and the offer has to be accepted.
  3. In the event of cancellation, the Purchaser undertakes to reimburse ELEVCO for the cancellation costs, i.e. the order amount less the expenses saved.
  4. ELEVCO reserves the right to make technical changes to the subject of the contract without notice from the time of the offer until the completion of the order, provided that the purpose of use and design of the product is fulfilled in an equivalent or higher quality.

§ 6 Force majeure

In the event of force majeure, the delivery period of ELEVCO shall be extended appropriately in the event of measures in the context of labor disputes, in particular strikes and lockouts, as well as the occurrence of unforeseen obstacles beyond the control of ELEVCO, provided that such obstacles are demonstrably of considerable importance for the completion or delivery of the delivery item. This shall also apply if such circumstances occur at suppliers of ELEVCO.

§ 7 Transfer of risk and acceptance

  1. The risk of accidental loss shall pass to the Purchaser when the delivery item is handed over to him or to the forwarding agent commissioned by him at the place of forwarding at the discretion of ELEVCO, even if partial deliveries are made or ELEVCO has assumed other services, e.g. shipping costs or delivery and installation. If an acceptance is agreed, this is decisive for the transfer of risk. It must be carried out immediately after notification by ELEVCO that the goods are ready for acceptance. The Purchaser may not refuse acceptance in the event of a non-essential defect.
  2. If shipment or acceptance is delayed or not carried out due to circumstances not attributable to ELEVCO, the risk shall pass to the Purchaser on the date of notification of readiness for shipment or acceptance. If the Purchaser is in default of acceptance, fails to cooperate or delays delivery by ELEVCO for other reasons for which the Purchaser is responsible, ELEVCO shall be entitled to claim compensation for any resulting damage and any additional expenses incurred (such as storage costs). ELEVCO shall, for the above reasons, any storage costs incurred as additional expenses to the Purchaser in the amount of 15.00 € per square meter per month, unless ELEVCO proves a higher damage or the Purchaser proves that ELEVCO no or a lesser damage.
  3. ELEVCO undertakes to take out at the expense of the Purchaser such insurance as the Purchaser may require.
  4. Partial deliveries shall be permissible insofar as they are reasonable for the Purchaser.

§ 8 Retention of title

  1. ELEVCO shall retain title to the delivery item until receipt of all payments under the delivery contract.
  2. If the retention of title expires, in particular through resale, combination, processing, there shall be an extended retention of title:
    1. In case of connection and processing ELEVCO acquires indirect possession and all rights resulting therefrom. The Purchaser hereby assigns to ELEVCO any claims arising from contracts, in particular contracts for work and services, which the Purchaser receives upon loss of title, even if such claims are not yet due.
    2. In the event of resale of the goods delivered by ELEVCO, the Purchaser shall, in order to preserve the reservation of title, in turn reserve the title against his Purchaser. The Purchaser hereby assigns to ELEVCO any and all claims which the Purchaser acquires in this respect.
  3. The purchaser is obliged to give full and exhaustive information on request about the whereabouts of the goods delivered with retention of title, the nature of the possible loss of ownership of ELEVCO, the claims acquired thereby and about the person of the third party.
  4. Upon receipt of the claims by the Purchaser, the Purchaser shall be obliged to immediately satisfy any claims of ELEVCO arising therefrom.
  5. Upon request, the Purchaser shall be obliged to provide ELEVCO with a written declaration of assignment. ELEVCO shall be entitled to disclose the assignment.
  6. Any assignment of claims, insofar as they arise from deliveries of items purchased from ELEVCO, to third parties, in particular for the purpose of obtaining credit, shall be excluded.
  7. The Purchaser shall be obliged to notify ELEVCO immediately of any seizure or other restriction of the property of ELEVCO. Any violation of this shall render the Purchaser liable for damages. Any intervention costs incurred shall be borne by the Purchaser.
  8. The securities granted to ELEVCO shall be released upon request at ELEVCO’s discretion if their value exceeds the claims by more than 20 % on a sustained basis.
  9. The Purchaser shall insure the delivery item against transport, fire, theft and water damage from the time of handover until the final transfer of ownership and shall bear the costs thereof.

§ 9 Safety, official requirements, approvals, ordinances, laws

  1. ELEVCO shall develop, design and manufacture elevator systems in accordance with the applicable European law and the applicable regulations and shall thus ensure that the elevator systems supplied meet all complete requirements for being placed on the market.
  2. However, the responsibility for the selection of suitable and required elevator technology and compliance with official laws, regulations and requirements as well as obtaining the necessary permits for the installation and placing on the market of the ordered and delivered elevator system on site shall lie solely with the Purchaser.

§ 10 Inspection for defects

The Purchaser shall inspect the goods immediately upon acceptance for deviations in quality and quantity and shall notify ELEVCO in writing of any recognizable defects immediately upon receipt of the goods; otherwise the assertion of warranty claims shall be excluded. Not immediately recognizable deviations are ELEVCO within a period of two weeks from discovery in writing. Timely dispatch shall be sufficient to meet the deadline. The purchaser shall bear the full burden of proof for all claim requirements, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.

§ 11 Claims for defects

ELEVCO shall be liable for material defects and defects of title of the delivery under exclusion of further claims – subject to § 7 – as follows:

  1. Material defects:
    1. The warranty period on all components, assemblies and systems supplied shall be 12 months from delivery ex works.
    2. All those parts shall be repaired or replaced free of defects at the discretion of ELEVCO which prove to be defective as a result of circumstances arising prior to the transfer of risk. ELEVCO shall be notified immediately in writing of the discovery of such defects. Replaced parts shall become the property of ELEVCO.
    3. After consultation with ELEVCO, the Purchaser shall give ELEVCO the necessary time and opportunity to carry out all repairs and replacement deliveries deemed necessary by ELEVCO; otherwise ELEVCO shall be released from liability for the resulting consequences.
    4. Only in urgent cases of danger to operational safety or to prevent disproportionately large damage, of which ELEVCO shall be notified immediately, shall the Purchaser have the right to remedy the defect himself or have it remedied by third parties and to demand reimbursement of the necessary expenses from ELEVCO. In this case, the expenses for the remedy of the defect shall be borne by ELEVCO at the same cost as if the remedy were carried out in the name and for the account of the Purchaser. The replaced parts shall be returned by the Purchaser to ELEVCO free of charge within a period not exceeding four weeks.
    5. ELEVCO shall bear – if the complaint proves to be justified – the expenses necessary for the purpose of supplementary performance, i.e. the costs of the replacement part including shipping and the reasonable costs of dismantling and installation – unless this results in a disproportionate burden on ELEVCO.
    6. Should the complaint prove to be unjustified, the Purchaser shall reimburse ELEVCO for all costs incurred in connection with the complaint.
    7. If the expenses increase due to the fact that the purchaser has taken the purchased item after delivery to a place other than the place of performance, any additional costs incurred shall be borne by the purchaser.
    8. In the event of the sale of a newly manufactured item, ELEVCO shall also reimburse, to the extent of its statutory obligation, the expenses incurred by the Purchaser in the context of recourse claims in the supply chain.
    9. The warranty rights of the Purchaser shall be subject to the condition that the Purchaser has duly complied with his obligations to examine the goods and to give notice of defects pursuant to § 377, HGB (German Commercial Code) in accordance with Clause 12. The twelve-month warranty period shall not apply if ELEVCO can be accused of gross negligence and in the case of bodily injury and damage to health attributable to ELEVCO and loss of life. The liability of ELEVCO under the Product Liability Act shall remain unaffected.
    10. Further claims of the Purchaser, in particular a claim for compensation for damage not caused to the delivery item itself, are excluded. This exclusion of liability does not apply in case of intent, gross negligence of the owner or executive employees as well as in case of culpable violation of essential contractual obligations. In case of culpable violation of essential contractual obligations ELEVCO shall be liable – except in cases of intent and gross negligence of the owner or executive employees – only for reasonably foreseeable damage typical for the contract. Furthermore, the exclusion of liability shall not apply in cases in which liability is assumed under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivery item. It shall also not apply in the absence of characteristics which have been expressly warranted if the purpose of the warranty was to protect the Purchaser against damage which did not occur to the delivery item itself.
    11. No warranty or liability shall be assumed in particular in cases of faulty assembly or commissioning as well as improper modifications or repair work carried out by the Purchaser or third parties, unsuitable or improper use, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences as well as for wearing parts – unless ELEVCO is responsible for them.
    12. If the purchaser or a third party makes improper repairs, ELEVCO shall not be liable for the resulting consequences. The same shall apply to any changes made to the delivery item without the prior consent of ELEVCO.
    13. Further claims shall be determined exclusively in accordance with § 7 (2) of these Terms and Conditions.
  2. Defects of title:
    1. a) If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, ELEVCO shall in principle procure the right of further use for the Purchaser at the Purchaser’s expense or modify the delivery item in a manner reasonable for the Purchaser in such a way that the infringement of property rights no longer exists.

      If this is not possible under economically reasonable conditions or within a reasonable period of time, the Purchaser shall be entitled to withdraw from the contract. Under the above conditions, ELEVCO shall also have the right to withdraw from the contract.

      In addition, ELEVCO shall indemnify the Purchaser against undisputed or legally established claims of the owners of the property rights concerned.

    2. The obligations of ELEVCO mentioned in § 6 (8) are subject to § 7 (2) for the case of infringement of property rights or copyrights conclusive.

      They exist only if

      • the Purchaser immediately notifies ELEVCO of any claimed infringement of intellectual property rights or copyrights,
      • the Purchaser supports ELEVCO to a reasonable extent in the defense of the asserted claims or enables ELEVCO to carry out the modification measures pursuant to § 6 (8),
      • ELEVCO reserves the right to all defensive measures, including out-of-court settlements,
      • the defect of title is not based on an instruction of the purchaser and
      • the infringement of rights has not been caused by the fact that the Purchaser has modified the delivery item without authorization or has used it in a manner not conforming to the contract.

§ 12 Liability of the Supplier and exclusion of liability

  1. If the delivery item cannot be used by the Purchaser in accordance with the contract as a result of culpably omitted or faulty suggestions or advice given by ELEVCO before or after conclusion of the contract, or as a result of culpable breach of other ancillary contractual obligations – in particular instructions for operation and maintenance of the delivery item – the provisions of § 6 and § 7 (2) shall apply to the exclusion of any further claims by the Purchaser.
  2. ELEVCO shall be liable for damages not occurring to the delivery item itself – for whatever legal reasons – only
    1. a) in case of intent and gross negligence,
    2. b) in case of culpable injury to life, body and health,
    3. c) in the case of defects which it has fraudulently concealed,
    4. d) within the scope of a guarantee promise,
    5. e) in the case of defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.

In case of culpable violation of essential contractual obligations, ELEVCO shall also be liable in case of simple negligence, however, limited to the reasonably foreseeable damage typical for the contract.

Further claims are excluded.

§ 13 Statute of Limitations

All claims of the Purchaser – on whatever legal grounds – shall become statute-barred after 12 months; this shall also apply to the limitation of claims under a right of recourse in the supply chain pursuant to § 445b para. 1 German Civil Code (BGB), provided that the last contract in this supply chain is not a purchase of consumer goods. The suspension of expiry pursuant to Section 445b (2) BGB shall remain unaffected. The statutory time limits shall apply to claims for damages under Section VII. 2 a-c and e. They shall also apply to defects in a building or to delivery items which have been used for a building in accordance with their customary use and have caused its defectiveness.

§ 14 Use of software

Insofar as software is included in the scope of delivery, the Purchaser shall be granted a non-exclusive right to use the delivered software including its documentation. It shall be provided for use on the delivery item intended for this purpose. Use of the software on more than one system is prohibited.

The Purchaser may only copy, revise, translate or convert the software from the object code into the source code to the extent permitted by law (§§ 69 a ff. UrhG). The Purchaser undertakes not to remove manufacturer’s information – in particular copyright notices – or to change them without the prior express consent of ELEVCO.

All other rights to the software and the documentation including copies remain with ELEVCO or the software supplier. The granting of sublicenses is not permitted.

§ 15 Applicable law and jurisdiction

  1. All legal relations between ELEVCO and the Purchaser shall be governed exclusively by the laws of the Federal Republic of Germany applicable to legal relations between domestic parties.
  2. The place of jurisdiction shall be Kiel, the registered office of ELEVCO. However, ELEVCO shall be entitled to bring an action at the Purchaser’s principal place of business.
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