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GENERAL CONDITIONS OF SALE

1. General

1.1 These General Conditions of Sale shall apply to all supplies of Products and Services of Martd GmbH, Schellingstrasse 153, 80797 München, Germany („NAIKO “) to Customer. They shall also apply to all future contracts even when no express reference is made.

1.2 Deviating or supplementary conditions, such as Customer’s General Conditions of Purchase, or verbal agreements shall only be binding if accepted by NAIKO in writing. Any communication transmitted via facsimile or electronically (e.g., via the Internet, including but not limited to EDI, cXML, e-mail) shall be considered “in writing”.

2. Formation of Contract, Minimum Purchase, Product Changes

2.1 NAIKO shall be bound only to offers specifying a period for acceptance. Customer’s order must be firm for at least 10 days after receipt by NAIKO.

2.2 In case of order values (exclusive of taxes, other dues and costs of transport) below EUR 500.–, NAIKO reserves the right to charge a handling fee of EUR 40.–.

2.3 NAIKO´s confirmation of order shall govern the scope and execution of the contract.

2.4 NAIKO may deviate from the agreed specifications and supply technically improved Products, as long as the improved Products have no negative impact on price, function and quality of the Products.

3. Technical Documents, Copyright

NAIKO reserves all intellectual property rights in the documents supplied to Customer. Without NAIKO’s consent these documents may neither be made available to third parties or used to manufacture copies of the Products. At its request, technical documents which had been made available in tangible form are to be returned to NAIKO.

4. Local Laws and Regulations

Customer shall in due time bring to NAIKO’s attention any laws or regulations at the place of destination in particular relating to safety, health or regulatory approvals required for the Products.

5. Price, Terms of Payment, No Set-Off 

5.1 The Prices are based on the agreed Incoterm (2010 or latest edition); in the absence of an agreed Incoterm they are understood FCA place of production.

5.2 Payments are to be effected at the agreed dates, failing such agreement, within 10 days following notification of readiness of despatch (prepayment).

5.3 If Customer is more than 14 calendar days in arrear in effecting payment or in providing an agreed security, the balance of the total Contract Price shall become due.

5.4 Customer may only withhold or set-off payments against counter claims which are either expressly acknowledged by NAIKO or judicially awarded to Customer by final judgment. Provided it has no material impact on the use of the Products, the delay of an insignificant part of the supplies does not entitle the Customer to defer payments.

6. Reservation of Title

6.1 Until payment in full the Products shall remain NAIKO’s property. NAIKO shall be entitled to register and do all things necessary to preserve its property rights. Prior to the transfer of title, Customer shall not be entitled to pledge, grant security interests, process or alter the Products.

6.2 Should the Customer resell Products to which title is reserved in the ordinary course of business, he shall be deemed to have tacitly assigned to NAIKO the receivables deriving from their sale, together with all collaterals, securities and reservations of title until all of NAIKO’s claims towards Customer have been settled. Up to NAIKO’s revocation, this assignment shall not preclude Customer‘s right to collect the assigned receivables. 

 

To the extent the value of the Products to which title is reserved together with any other col-lateral exceeds NAIKO’s claims against the Customer by more than 20%, NAIKO shall re-assign the above receivables to Customer at his request.

7. Delivery Period, Delays in Delivery and Acceptance

7.1 The term of delivery shall commence as soon as the contract has been concluded, all regulatory approvals, such as export-, import- and payment permits have been obtained, any advance- or prepayments or the notification of the issue of the letter of credit have been received by NAIKO and soon as all technical documents agreed between the Parties have been supplied or approved by Customer. 

7.2 Delivery is subject to the following conditions, i.e. the term of delivery shall be reasonably extended 

a) if NAIKO is prevented from performing the contract by Force Majeure. Force majeure shall equally be deemed to be any unforeseeable event beyond NAIKO’s control which renders NAIKO’s performance commercially unpractical or impossible, such as delayed or defective sup-plies from subcontractors or subsuppliers, labour disputes, governmental orders or regulations, shortage in materials or energy, serious disruptions in NAIKO’s works, such as total or partial destruction of plant and equipment or the breakdown of essential production facilities, serious disruptions in transport facilities, e.g. impassable roads. Should the effect of Force Majeure exceed a period of three (3) months, either Party may terminate the contract forthwith. In such case Customer may not claim damages.

b) if Customer is in delay with the fulfilment of his obligations under the contract, in particular, if he does not adhere to the agreed terms of payment or if he has failed to timely provide the agreed security.

7.3 If for reasons attributable to NAIKO the agreed term of delivery or a reasonable extension of not less than one month granted by Customer is exceeded, Customer may exert its rights at law. Subject to Clause 11, damage claims shall be limited to maximum 10% of the Price of the Products in delay.

7.4 Part shipments shall be permitted and NAIKO may invoice each part shipment. If Customer fails to take delivery of the Products notified as ready for despatch or if he cancels the order without cause and if he fails to remedy such breach within latest 7 days’ from NAIKO’s notice, NAIKO shall be entitled to rescind the contract and claim damages pursuant to Clause 6.3. 

8. Packaging, Shipping, Transfer of Risk

8.1 If the Products are to be provided with additional packing above the standard packing, such packing shall be charged additionally.

8.2 Unless agreed otherwise in the contract, the Products shall be shipped FCA place of production (Incoterms 2010 or latest edition). This equally applies if the transport is arranged by NAIKO. 

8.3 Transport insurance shall be for Customer’s account. The same applies if transport insurance is taken out by NAIKO on behalf of Customer.

8.4 Customer shall timely, at least one (1) week prior to the agreed despatch date, notify special requests regarding carriage and insurance. Otherwise NAIKO shall, at its discretion but without liability, arrange for the quickest and cheapest carriage possible. 

8.5 In case of carriage-paid delivery, transport arrangements shall be made by NAIKO. Additional costs resulting from special requests by Customer shall be for Customer’s account.

8.6 Transport damages, missing or wrong items must be noted on the notice of receipt and documented by photo records.

9. Inspection, Notification of Defects

9.1 During manufacture the Products will be subject to NAIKO’s standard inspections.

9.2 Additional tests must be required by Customer in due time and shall be charged separately.

9.3 Customer shall inspect the Products within one week after receipt with regard to readily identifiable discrepancies from the contract specifications, in particular regarding function and performance and shall notify NAIKO any such defects or deficiencies latest within another week.

10. Warranty, Statute of Limitations

10.1 In case of wrong deliveries, the delivery of defective Products or in case of defects resulting from false commissioning-, operation- or maintenance instructions Customer may, at NAIKO’s election and cost, either request repair or replacement, provided that the remedy offered by NAIKO is not unduly burdensome on Customer. Replaced Products or parts shall, at its request, become again NAIKO´s property.

10.2 For Products which are manufactured to specifications, drawings or patterns supplied by Customer, NAIKO’s warranty shall be limited to proper materials and workmanship.

10.3 Customer shall be entitled to rescind the contract or to demand a reduction of the Price if

– the repair or replacement of the defective Product is impossible;

– NAIKO refuses the repair or replacement or if for reasons attributable to NAIKO the repair or replacement is delayed.

10.4 The warranty given hereunder shall not apply to defects or damages resulting from normal wear and tear, improper storage and maintenance, failure to observe the commissioning-  or operating instructions, overstressing or overloading, unsuitable operating media, improper re-pairs or alterations by Customer or third parties, defects resulting from the use of other than original spare parts or other reasons beyond NAIKO’s control.

10.5 No action or claim may be brought by Customer on account of any alleged breach of warranty or any other obligation or liability of NAIKO after the expiration of twelve (12) months from receipt of the Products by the end user or at the latest within eighteen (18) months from the receipt of the Products by NAIKO. The warranty for repaired or replaced parts or Products expires 6 months from the date of replacement or repair, at the earliest however upon expiry of the original warranty period for the Product. Reservation is being made for longer statutes of limitation under mandatory law.

11. Limitation of Liability

The rights and remedies of Customer are exclusively governed by these General Conditions of Sale and shall be in lieu of any remedies at law. All further claims for damages, reduction of the Price, termination of or rescission of the contract are excluded. Customer shall not be entitled to claim damages for loss of production, loss of use, loss of orders, loss of profit, loss of anticipated savings, loss of data, costs for dismantling or reinstallation of the Product  or handling costs for claims management, liability for damage to property, as well as for claims of third parties for such damages or costs.  The limitation of liability equally applies to the extent NAIKO is liable for acts or omissions of its employees or third parties engaged in the performance of its obligations. It does not apply to the extent NAIKO’s liability is mandatory, in particular in case of unlawful intent or gross negligence on the part of NAIKO and its employees or third parties engaged in the performance of the contract, in case of fraudulent concealment of a defect, for personal injury or death or under NAIKO’s mandatory liability under applicable Product Liability Acts.

12. Protection of Personal Data

12.1 In compliance with the provisions of data protection, NAIKO processes personal data that the customer transfers to NAIKO in execution of this contract (e.g. first and last name, invoice and delivery address, e-mail address, invoice and payment data) in order to accept and process the orders. For this purpose, NAIKO may also transfer this data to third parties and cooperate with so-called „processors“ (e.g. partner companies, logistics companies, shipping partners and payment service providers). 

12.2 In addition, NAIKO processes the customer‘s personal data for the purpose of complying with legal obligations as well as fraud prevention and, if necessary, for the transmission of claims to collection service providers. 

12.3 If the EU Data Protection Regulation (GDPR) is applicable, the legal basis for the aforementioned data processing purposes is either Art. 6 (1)(1)(b), (c) or (f) GDPR. Otherwise the legal basis results from the relevant data protection regulations. 

12.4 NAIKO will delete the personal data as soon as they are no longer required for the afore-mentioned purposes or in the event of an objection, unless the deletion conflicts with compel-ling legitimate grounds of NAIKO (e.g. assertion, exercise or defense of legal claims). 

12.5 Further details and information on data protection, in particular on the rights of data subjects, can be found in NAIKO‘s data protection policy. In case the GDPR is not applicable, the relevant data protection provisions apply accordingly instead of the GDPR provisions stated here.

13. Severability

If any one or more of the provisions of these terms and conditions shall be determined to be invalid, illegal, or unenforceable, in whole or in part, or if an unintentional gap in the provisions of these terms and conditions becomes apparent, the validity, legality, and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby and shall nevertheless be binding between the Parties hereto.  Any such invalid, illegal, or unenforceable provision or portion of these terms and conditions shall be changed and interpreted, and any unintentional gap filled, so as to best accomplish the objectives of such provision or portion thereof in light of the purpose of these terms and conditions and within the limits of applicable law.

14. Place of Fulfilment, Applicable Law, Jurisdiction

14.1 Unless otherwise agreed in a Purchase Order the place of fulfilment shall be Munich, Germany.

14.2 The contract shall be governed and construed under German law, its conflicts of law provisions and the Convention on the International Sale of Goods (CISG) being excluded.

14.3 Exclusive jurisdiction for all claims out of or in connection with this contract shall revert to the competent courts at NAIKO’s place of business in Munich, Germany. NAIKO shall be entitled to bring action in any other competent court. 

The contractual relationship is subject to German law.