General Terms and Conditions of Sale - Chip One Exchange GmbH & Co. KG

§ 1 Applicability of these General Terms and Conditions of Sale

(1) All sales offers, supply of goods or services rendered by us shall be governed exclusively by the following General Terms and Conditions of Sale (hereinafter the “Terms”). The Terms are deemed the framework for any and all future agreements regarding goods offered for sale by the Seller even where not expressly agreed between the parties.

(2) Any standard business terms or conditions of the Buyer which deviate from or are in contradiction to the Terms or contain conditions not included in the Terms shall only be deemed to have become a part of any sales agreement if we have expressly consented to applicability of such other terms of Buyer. Our consent shall be required for such applicability even where we have supplied goods without reservation in knowledge of Buyer’s business terms.

(3) Individual agreements concluded in specific cases (including collateral agreements, supplements and changes) always have priority over these Terms. A written agreement or our written confirmation shall be decisive as regards the content of such agreement.

§ 2 Conclusion of Contract

(1) Sales offers and prices set out in brochures, ads, price lists and quotations are non-binding and are quoted without obligation on our part.

(2) Buyer’s order for goods is deemed a binding offer to enter into a contract. Unless otherwise set out in the order, we are entitled to accept such offer within four (4) weeks after its receipt.

(3) The acceptance of an order takes place through the acknowledgement of order (Sales Order) in text form or upon our delivery of the goods to the Buyer.

§ 3 Prices

(1) Unless otherwise indicated, our prices are ex warehouse and do not include standard packing costs which will apply.

(2) Additional deliveries, shipping or services will be invoiced separately.

§ 4 Period of Delivery and Performance

(1) Where acceptance of Buyer’s offer does not take place by direct delivery of the goods to the Buyer, a delivery period will be indicated in the Sales Order. Where no delivery period is indicated, delivery will be within four weeks after conclusion of the agreement.

(2) If we do not meet the agreed delivery date, Buyer is obligated to set a reasonable further period for delivery that in no case may fall below four weeks.

(3) Even in the event of binding deadlines and delivery periods we will not be liable for delays in delivery of goods or services due to force majeure or other circumstances not foreseeable at the time of conclusion of the agreement and for which we are not at fault and which prevent or gravely hinder delivery (this includes subsequent difficulties in materials procurement, factory shutdown, strikes, lock-outs, manpower shortages, transportation shortages, legislative or administrative orders etc., including such affecting our suppliers or their suppliers). If such circumstances are not of a temporary nature, we shall be entitled to withdraw from the contract. In the event of temporary circumstances the periods for delivery or performance of services will extend accordingly for the amount of time of the hindering circumstances plus a reasonable restarting period.

(4) If the hindrance lasts more than three months or Buyer cannot reasonably be expected to accept delay, then after a subsequent waiting period of reasonable length the Buyer may withdraw from the unfulfilled part of the contract.

(5) We are entitled to partial deliveries, if such partially delivered goods may be used by the Buyer as per their purpose as set out in the agreement, delivery of the remaining goods is secured and the Buyer does not incur further or additional costs thereby (unless we agree to bear such costs).

(6) If supply of goods is not possible because our suppliers have not supplied us with goods or have not supplied us within the proper time limits or if the product is not available, we may supply goods in lieu of these that are equal in both quality and price. If no such supply equal in quality and price is possible, both parties may withdraw from the contract and shall no longer be obligated to fulfill it. We will inform the Buyer without undue delay of such non-availability of performance and will reimburse any payments already made by the Buyer without undue delay.

§ 5 Dispatch and Passing of Risk

(1) Goods are shipped ex our warehouse at the cost of the Buyer. Unless otherwise instructed in writing, Seller will choose shipping method and packing at its reasonable discretion.

(2) The risk shall be transferred to the Buyer as soon as the consignment was given to the person carrying out the transport or has left the Seller's warehouse for the purposes of shipping.

§ 6 Warranty and Liability

(1) Unless determined otherwise below, Buyer shall have the rights set out by law in cases of defect in the supplied goods.

(2) Deviations in quality, color, width, weight, accouterments or design which are slight, technically unavoidable or customary in the industry are excluded from the warranty. Slight changes in the purchased item due to technical advances are not deemed to be defects.

(3) Buyer shall carefully inspect the supplied goods for defects immediately upon receipt. The amount of care required in such inspection will vary depending upon, but not limited to: type, value and purpose of the goods, the relevance of the effects of any defects, any visible deviations of the goods or particular weak spots or defects known from previous deliveries. In the event goods display obvious defects or other defects recognizable upon immediate careful inspection, such goods will be deemed to have been accepted by Buyer if Buyer fails to send written notification of such defects within one week after delivery of the goods. For defects not visible upon immediate inspection within this period, the goods are deemed to have been accepted by Buyer if we have not received notification of such defect within one week after Buyer becomes aware of the defect; if such defect however should have been recognizable to the Buyer in the course of use prior to that time, the earlier time period for defect notification will apply.

(4) Buyer shall inspect the shipment upon receipt immediately for damages incurred during shipping and must notify Seller immediately of any such damages or loss, either through shipper’s reporting system or by affidavit signed by two witnesses and the Buyer.

(5) We shall be liable for damages, irrespective of their legal ground, in cases of willful intent and gross negligence. In case of ordinary negligence we are only liable for damages to life, body or health or for damages due to breach of a cardinal contractual obligation. In the latter case our liability is limited to compensation of foreseeable and typically occurring damages. An obligation is to be considered a cardinal contractual obligation if its fulfilment is a precondition for the proper performance of the contract and the counterparty may generally rely on its fulfilment.

(6) Buyer acknowledges that, as a reseller, Seller will not be aware of the use to be made of the goods sold and that Seller can only subject incoming goods to the most basic spot checks within reasonable limits based on Seller’s organizational, financial and technical capabilities (ESD container, original packaging, legibility of labels, correct type of goods, spot-check visual inspection). Unless otherwise agreed due to type of goods, value or potential risk, Seller will not be responsible for inspections with regard to possible infringement of third-party rights, reject goods, suitability of goods for a particular use, e-mail inquiries with label check and comparable quality testing or inspection.

(7) The limitations arising from Sections (5) and (6) above shall not apply in the event Seller has fraudulently concealed defects or has provided a warranty for specific features of supplied goods. The same shall apply to any valid claims of Buyer under the laws on product liability.

(8) The above exclusions and limitations of liability shall also apply to the same extent to Seller’s supervisory bodies, legal representatives, employees and vicarious agents.

(9) Unless otherwise agreed for individual goods, the warranty period is one year and begins on date of delivery. This limitation period is also applicable to claims of Buyer for extra-contractual claims for damages based on a defect in the goods, unless statutory limitation periods as per Sections 195, 199 BGB (German Civil Code) are shorter. The statutory limitation periods shall apply however in cases of damage/reimbursement claims based on willful intent or gross negligence, injury to life, body or health, liability under product liability laws, fraud and/or product warranty.

(10) Buyer derives no rights of retention against any claims of Seller from the aforementioned rights, that are not to refer to the delivery object itself. We are entitled to make the owed subsequent performance dependent on the fact that Buyer pays the due purchase price. Buyer is however entitled to retain a part of the purchase price which is reasonable in the ratio to the defect.

§ 7 Retention of Title

(1) Retention of title as set out hereinafter is for securing of any and all present or future claims of Seller against Buyer arising from the delivery of goods sold (including balances owed on current accounts).

(2) Goods delivered to Buyer by Seller shall remain Seller’s property up until complete payment of all claims of Seller secured by the retention of title has been effected. Goods delivered as well as any goods in lieu thereof covered by retention of title as per the following are herein referred to as the “Retained Goods”.

(3) Buyer shall keep the Retained Goods for Seller in custody at no charge.

(4) Until fully paid, Retained Goods may not be subject to third-party lien or assigned as security. Should a third party attempt to seize or attach Retained Goods, in particular by impoundment, Buyer shall immediately inform the third party of Seller’s proprietary rights and retained title and shall notify Seller thereof to enable it to assert its proprietary rights. If the third party in this event is not able to reimburse Seller for any court or out-of-court costs incurred by Seller thereby, Buyer shall be liable to Seller for such costs.

(5) In the event of breach of contract by Buyer, in particular failure to pay the due purchase price, Seller may withdraw from the sales agreement as per the statutory provisions and may demand return of the goods. Where Buyer has not paid the due purchase price, Seller may only exercise these rights if Buyer has failed to pay after being set a further reasonable period for payment or such additional period is not required by law.

(6) Buyer may resell and/or process the Retained Goods within the normal course of business. In this case the following supplemental conditions will apply:

(a) Retention of title is deemed to extend to all products created by processing of our goods, at the full value of such newly created product, whereby the parties agree that such processing is only undertaken on behalf of and for the account of Seller as the manufacturer and that Seller becomes the direct owner of the newly created product or – in the event the product consists of various parts subject to retention of title of various owners – the Seller becomes co-owner of the product at the ratio of the value of Seller’s Retained Goods to the value of the new product. In the event such direct ownership by Seller does not arise, Buyer herewith agrees to assign to Seller as security Buyer’s future rights of ownership or co-ownership in the product in the ratio set out above. If the Retained Goods are mixed with other goods in such a way that a single item is created or which can no longer be separated by component and a component other than Seller’s may be deemed the main component of the new product, the Seller agrees to assign to Buyer co-ownership in the single item in as far as the main component belongs to it, in the ratio as set out in the first sentence of this Section 6 (a).

(b) Buyer herewith assigns to Seller as security any claims Buyer may have against third parties arising from resale of the goods or the product created with the goods, in full or in the amount of Seller’s co-ownership as per Section 6 (a). The same shall apply for other claims in lieu of the Retained Goods or which arise with regard to the Retained Goods such as insurance claims or tort claims in the event of loss or destruction.

(c) Beside ourselves, Buyer remains authorized to the collection of the claims. We agree not to collect claims as long as Buyer complies with all payment obligations, does not default, has not filed insolvency and there is no other legal defect in Buyer’s creditworthiness. If such is the case however, we may demand that Buyer discloses to us the claims thus assigned and the names of the debtors, provide all information and documentation necessary for recovery of the claims and notify the third-party debtor of the assignment of claim

(d) Seller will release the Retained Goods and/or items in lieu of them and/or claims if the value of such exceeds the value of the secured claims by more than 20%. Seller is free to choose which such Retained Goods, items or claims will be released.

§ 8 Payment

(1) The purchase price shall be due and payable within 14 days from receipt of invoice and delivery.

(2) Date of payment is deemed the date of receipt of payment by Seller. Incoming payments will apply first to costs and any interest accrued. Incoming payments shall first be applied to settle all interest and costs.

(3) Acceptance of checks or bills of exchange requires a specific agreement. The acceptance always results only through fulfillment. Any and all discounting and bill charges shall be borne by Buyer and are immediately due.

(4) With the expiry of the above-mentioned term of payment Buyer will be in default. Interest is to be paid on the purchase price at the respective applicable interest rate for default during the default. We reserve the right to assert further damages due to default. Our claim for the commercial maturity interest (§ 353 HGB [German Commercial Code]) against merchants remains unaffected.

(5) If, after the contract has been concluded, it becomes apparent that our claim to the purchase price is endangered as a result of insufficient financial status by Buyer (e.g. Buyer files for insolvency), we are entitled to refuse further performance according to the statutory provisions and may, after a notification and waiting period where required, withdraw from the contract (Section 321 BGB).

(6) Buyer may only offset claims against payment upon our express written consent thereto or if the counterclaims are uncontested or have been finally and non-appealably established.

§ 9 Applicable Law, Place of Jurisdiction, Partial Invalidity

(1) The law of the Federal Republic Germany exclusively applies with exclusion of the UN uniform law for international sales (CISG).

(2) For merchants, Frankfurt am Main shall be the sole place of jurisdiction for all disputes arising directly or indirectly from the agreement. The place of performance is Frankfurt am Main.

(3) Should a provision of these Terms or a provision in other agreements be or become invalid, the validity of the remaining provisions and/or agreements will not be affected. Seller and Buyer agree to replace the invalid provision with a valid provision which comes as close as possible under law to the economic intent and purpose of the invalid provision. Where this is not possible, the invalid provisions shall be replaced by the general statutory regulations.

§ 10. Data Protection

(1) Buyer herewith agrees and authorizes Seller to process, store and evaluate the data received through the business relation according to data protection law.

(2) Seller stores and uses personal data of customers for purposes of execution of orders and any complaints/returns. Customer’s e-mail address is used solely for notifications concerning orders and for transmittal of Seller’s own newsletter if customer requests this.

(3) No personal customer data will be disclosed to third parties, with the exception of Seller’s service partners who may require such data for processing of orders. In such cases the data disclosed will be limited to the minimum required.

(4) The customer retains the right of disclosure concerning personal data as well as the right to correct such data or demand its block or deletion.