GENERAL TERMS OF DELIVERY AND PAYMENT (English)

1. Scope and form of application

All offers, deliveries and services of Golden Devices GmbH (hereinafter referred to as “Golden Devices”) are made exclusively on the basis of these General Terms and Conditions of Delivery and Payment (hereinafter referred to as “GTCD”). The GTCD are an integral part of all contracts that Golden Devices concludes with its contractual partners (hereinafter “Customer”) for the deliveries and services offered by Golden Devices.

General terms and conditions of the Customer are hereby expressly rejected. They shall not apply, even if Golden Devices does not separately object to their validity in individual cases. This shall also apply if Golden Devices refers to an order or other letter of the customer which contains general terms and conditions.

The geographical scope of application for all products and services exclusively covers the European Union.

2. Offer and conclusion of contracts

Offers from Golden Devices are generally subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. Golden Devices can accept orders or commissions from the customer within 14 days of receipt. Binding individual orders shall be concluded by an order or an order of the customer and an order confirmation of Golden Devices in text form.

Should the content of the order confirmation deviate from the order, the customer shall inform Golden Devices within 7 days whether he agrees with the deviation, otherwise Golden Devices shall be entitled to cancel the corresponding order.

3. Contract content

The relevant content of the individual order is set out in the order confirmation including this GTCD. Verbal promises and agreements prior to the conclusion of the contract are not legally binding and are replaced by the concluded contract, unless expressly agreed otherwise between the contracting parties. Subsequent additions and deviations from the concluded contract including these GTCD must be made in writing to be effective.

Information provided by Golden Devices on the delivery items as well as pictorial representations of the same are only approximate unless they are specified as defined values in the product data sheet and are therefore only descriptions and not guaranteed characteristics. Customary deviations are permissible insofar as the contractually agreed purpose of use is not impaired thereby.

4. Prices and payment

The prices shall apply to the scope of delivery and services listed in the order confirmation; additional or special services shall be remunerated additionally. Prices are quoted in EUR, strictly net, ex works, plus packaging, statutory VAT, customs duties in the case of export deliveries as well as fees and other public charges. Invoices shall be paid within 30 days without deduction by bank transfer to the account specified in the invoice; the date of payment shall be determined by the date of receipt of the money by Golden Devices.

Offsetting against counterclaims of the customer or the withholding of payments due to such claims is only permitted if the counterclaim is undisputed or has been legally established or arises from the same order under which the delivery in question was made.

Golden Devices shall be entitled to perform outstanding deliveries or services only against advance payment or provision of security if circumstances become known after conclusion of the contract which are likely to significantly reduce the creditworthiness of the Customer.

5. Delivery and delivery time

Subject to deviating agreements in individual cases, delivery shall be EXW Incoterms 2020. Partial deliveries are permissible insofar as the delivery of the outstanding part is ensured and this does not result in any significant additional expense for the customer.

The delivery dates stated in the order confirmation are only approximate, unless a fixed date has been expressly promised or agreed, and are subject to the customer fulfilling its obligations to cooperate.

If shipment has been agreed and no other agreement has been made, the delivery deadlines shall refer to the time of handover to the third party commissioned with the transportation; the type of shipment and packaging shall be at the dutiful discretion of Golden Devices. Insurance shall only be taken out at the express request and expense of the customer.

Golden Devices shall not be liable for impossibility or delay in delivery if this is caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, official measures or the lack of, incorrect or untimely delivery by suppliers despite the conclusion of a congruent hedging transaction) for which the seller is not responsible. In the event of temporary obstacles, the delivery period shall be extended accordingly; in the event of permanent obstacles or if the delay is unreasonable, the customer may withdraw from the contract.

If Golden Devices is in default with a delivery, the Customer shall be entitled to set a reasonable grace period and to withdraw from the contract after its fruitless expiry. In this case and in the event of impossibility of delivery, liability for damages shall be limited in accordance with Section 7 below.

6. Warranty and defects

The warranty period is 12 months from delivery. This shall not apply to claims for damages arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by Golden Devices (including its vicarious agents), which shall become statute-barred in accordance with the statutory provisions. The delivered items must be carefully inspected immediately after delivery. Section 277 HGB applies.

Golden Devices shall only be liable for compliance with the product data sheet and in particular not for the suitability of the products for the specific purpose of the customer. Even advice given by Golden Devices in this respect does not release the Customer from its sole responsibility for the suitability of the product for its intended use. Damage to the products caused by their improper handling, installation, assembly, improper transportation or modification of the products by the Customer or a third party shall not be deemed defects.

In the event of properly notified defects, Golden Devices shall initially be entitled and obliged (at its discretion) to repair or replace the goods within the warranty period. In the event of failure, the customer may withdraw from the contract or reduce the remuneration appropriately. If the defect is due to the fault of Golden Devices, the customer may also demand compensation in accordance with Section 7.

The warranty shall lapse if the Customer modifies the products or has them modified without the consent of Golden Devices and this makes it unreasonably difficult and impossible to rectify the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.

For replacement deliveries or repaired products, the original warranty period shall continue to run, but shall be at least 3 months.

7. Liability and compensation

The liability of Golden Devices for damages, regardless of the legal grounds, with the exception of product liability claims, is limited in accordance with this Section 7, unless Golden Devices has caused the damage intentionally or the damage consists of injury to life, body or health.

Golden Devices shall not be liable for cases of simple negligence, unless it is a breach of material contractual obligations. Essential to the contract is in particular compliance with the properties promised in the product sheet, insofar as these have a significant influence on the functionality or usability of the products. Insofar as Golden Devices is liable for damages, this liability is limited to the typically foreseeable damage; in particular, indirect damage is only covered insofar as this is typically to be expected.

In any case of liability for simple negligence, Golden Devices‘ obligation to pay compensation for property damage and resulting financial losses is limited to the value of the order, but at least €15,000 per case of damage.

The exclusions of liability and limitations of this Section 7 shall apply to the same extent in favor of the bodies, legal representatives, employees and other vicarious agents of Golden Devices.

Insofar as Golden Devices provides technical information or otherwise acts in an advisory capacity and this is not explicitly part of the contractually agreed scope of services, this is done free of charge and to the exclusion of any liability.

8. Third party rights

Golden Devices shall be liable for ensuring that the manufacturing process of the products does not infringe the industrial property rights of third parties. Golden Devices shall not be liable for freedom from third-party property rights with regard to the specific form (dimensions) or material of the products specified by the Customer or their intended use by the Customer; should third parties assert claims against Golden Devices in such a case, the Customer shall indemnify Golden Devices from this in full. Should third parties assert claims against the Customer due to an infringement of property rights by the manufacturing process of the products, the Customer shall inform Golden Devices of this immediately and provide all information and grant all rights required for a defense against these claims. Golden Devices shall be entitled to take all measures deemed necessary or useful in this connection at its own expense, in particular to conduct settlement negotiations with the third party or to join the proceedings as a party to the dispute. The customer shall support Golden Devices to a reasonable extent in the defense against such claims. Insofar as the customer complies with these obligations, Golden Devices shall, in the event of a legally established infringement of third-party property rights by the manufacturing process of the products, procure the necessary licenses from these third parties or technically redesign the manufacturing process so that there is no longer an infringement. If neither is possible with economically justifiable effort, both parties shall be entitled to withdraw from the contract. In this case, the Customer shall also be entitled to claim damages in accordance with Clause 7. Insofar as the Customer makes acknowledgements, concludes settlements or takes other measures which are to the disadvantage of Golden Devices without the consent of Golden Devices, it shall be obliged to compensate Golden Devices for any resulting damage.

9. Confidentiality and rights

Notwithstanding any confidentiality agreement concluded between the parties, the Customer shall treat as confidential all information which becomes accessible to it from or via Golden Devices within the scope of the business relationship and the confidentiality of which it can recognize with the care of a prudent businessman, shall not make it accessible to third parties and shall only use it for the contractually intended purpose. It shall only make them accessible to those of its employees who require knowledge and are accordingly obliged to maintain confidentiality. All documents and information provided by Golden Devices as well as all know-how, copyrights and industrial property rights existing at Golden Devices shall remain the exclusive property of Golden Devices. Unless explicitly agreed otherwise, no licenses or rights of use are granted by the supply relationship and the information provided, with the exception of the right to use the products for the contractually agreed purpose. In particular, the Customer shall not be entitled to disassemble, reverse engineer or decompile products (including prototypes) without the prior written consent of Golden Devices. Should such authorization be granted in individual cases, the information thus obtained shall also be subject to confidentiality in accordance with this Section 9. The products offered by Golden Devices are manufactured in a wide variety of materials, lengths and shapes. A specification of certain dimensions and shapes by the customer therefore does not establish any rights of the customer to this specific product design. Unless explicitly agreed otherwise in the context of a specific order, Golden Devices is entitled without restriction to sell and offer products with the same dimensions, shapes and materials to other Notwithstanding any confidentiality agreement concluded between the parties, the Customer shall treat as confidential all information which becomes accessible to it from or via Golden Devices within the scope of the business relationship and the confidentiality of which it can recognize with the care of a prudent businessman, shall not make it accessible to third parties and shall only use it for the contractually intended purpose. It shall only make them accessible to those of its employees who require knowledge and are accordingly obliged to maintain confidentiality. All documents and information provided by Golden Devices as well as all know-how, copyrights and industrial property rights existing at Golden Devices shall remain the exclusive property of Golden Devices. Unless explicitly agreed otherwise, no licenses or rights of use are granted by the supply relationship and the information provided, with the exception of the right to use the products for the contractually agreed purpose. In particular, the Customer shall not be entitled to disassemble, reverse engineer or decompile products (including prototypes) without the prior written consent of Golden Devices. Should such authorization be granted in individual cases, the information thus obtained shall also be subject to confidentiality in accordance with this Section 9. The products offered by Golden Devices are manufactured in a wide variety of materials, lengths and shapes. A specification of certain dimensions and shapes by the customer therefore does not establish any rights of the customer to this specific product design. Unless explicitly agreed otherwise in the context of a specific order, Golden Devices is entitled without restriction to sell and offer products with the same dimensions, shapes and materials to other customers (including a corresponding offer in the web store).

10. Reservation of ownership

Ownership of the delivered products shall not pass to the customer until payment has been made in full. The products subject to retention of title may neither be pledged to third parties nor assigned as security before full payment has been made. The customer shall inform Golden Devices immediately if an application for the opening of insolvency proceedings is filed or if third parties have access to the products subject to retention of title (e.g. seizures) and shall inform the third parties of Golden Devices‘ ownership rights. In the event of breach of contract by the customer, in particular non-payment of the purchase price due, Golden Devices shall be entitled in accordance with the statutory provisions to withdraw from the contract and to demand the return of the products on the basis of the retention of title (realisation event). The purchaser is authorised to process and/or sell the products in the ordinary course of business until further notice. In this case, the retention of title shall extend to the products resulting from the combination with the products; Golden Devices shall acquire co-ownership of the resulting products in proportion to the value of the combined items. The customer hereby assigns the claims against third parties arising from the resale of such products or the products to Golden Devices in the amount of the invoice value of the products as security and Golden Devices accepts this assignment. The customer shall remain authorised to collect the claim in its own name; Golden Devices may only revoke this authorisation in the event of realisation.

11. Other Terms and Conditions

The place of fulfilment for all obligations arising from the contractual relationship is the registered office of Golden Devices. The business relationship between Golden Devices and the Customer, including all claims and disputes that may arise therefrom, shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods and private international law. The exclusive place of jurisdiction is the registered office of Golden Devices. The legal invalidity of individual components of the contract concluded between the parties, including these GTCD, shall not affect the validity of the remaining contractual provisions. In this case, the parties undertake to replace the invalid provision with a valid provision that comes as close as possible to the economic intention of the invalid provision.