Oberhauser Bau-Systeme GmbH

(in the following: "Oberhauser")
Rohrbach – Bahnhof 18
84494 Niederbergkirchen / Germany

1. validity, deviating terms and conditions, power of representation

1.1
These GTC apply to consumers and entrepreneurs. Consumers within the meaning of these terms and conditions are natural persons with whom business relations are entered into without a commercial or independent professional activity being attributable to them. Entrepreneurs within the meaning of these terms and conditions are natural or legal persons or partnerships with legal capacity with whom business relations are entered into and who act in the exercise of their commercial or independent professional activity.

1.2
The contracting parties agree that the GTC of Oberhauser in their currently valid version shall be the basis for all future purchase and work delivery contracts concluded between them within the scope of their business relationship. Any subsequent changes to the GTC shall become effective if the customer has been demonstrably informed thereof in text form and does not object to this notification within three weeks.

1.3
Terms and conditions of the customer that deviate from or supplement these GTC shall not apply. They shall only become effective upon express written confirmation by Oberhauser. This also applies if Oberhauser carries out the delivery or other service without reservation in the knowledge of deviating terms and conditions of the customer.

1.4
Oberhauser's employees are not authorized to make ancillary agreements that go beyond the written contract or to amend or waive these GTC. The power of representation of the managing directors and authorized signatories remains unaffected.

2. offers, conclusion of contract, industrial property rights
2.1
Offers from Oberhauser are non-binding. A contract is only concluded upon confirmation by Oberhauser in text form.

2.2
Oberhauser reserves its property rights, copyrights, design rights and other industrial property rights to all illustrations, calculations, drawings, drafts, designs, tools and other documents. The customer is only permitted to use them within the scope of the purpose of the contract. Any other use, in particular duplication, transfer to third parties or other commercial use, is not permitted to the customer.

2.3
If the customer supplies illustrations, calculations, drawings, drafts, designs or other documents, he shall be liable to Oberhauser for ensuring that no industrial property rights, in particular patents, registered designs, copyrights or other rights of third parties are infringed by the use of the documents. The customer shall indemnify Oberhauser against claims of third parties for such infringements.

3. prices, terms of payment

3.1
All prices are ex works plus packaging and plus the applicable statutory VAT.

3.2
The handover or delivery of goods and services is always made against advance payment, but delivery against invoice is subject to a successful credit check. Unless otherwise agreed, invoices from Oberhauser are due for payment immediately upon receipt and must be paid by the customer within ten days of the invoice date without deduction.

3.3
If the customer is in default with his payment obligations, Oberhauser shall be entitled to charge the customer a reasonable fee of at least EUR 5.00 for each reminder, unless the customer proves that the actual costs incurred are lower. If the due dates are exceeded or in the event of deferral, Oberhauser shall be entitled to demand interest on arrears or deferral in the amount of 8 percentage points per annum above the respective base interest rate according to § 247 BGB.

3.4
If the customer is in default of payment, Oberhauser is entitled, without prejudice to further claims and rights, to extraordinarily terminate any existing deferral agreement and to make all claims due immediately.

3.5
If the customer does not meet his payment obligations despite a reminder, suspends his payments or a bank does not honor a check or direct debit due to insufficient funds, Oberhauser may declare all existing claims due for payment immediately.

3.6
Oberhauser also reserves the right to exclude certain payment methods in individual cases to hedge the credit risk and to make requested deliveries only against advance payment, cash on delivery or immediate payment upon delivery or handover. If, after conclusion of the contract, facts become known that give rise to objective doubts as to whether the customer will duly fulfill the contract, e.g. due to insolvency or refusal to fulfill the contract, Oberhauser is entitled to demand advance payment or corresponding securities and, in the event of refusal, to withdraw from the contract.

3.7
Oberhauser is entitled to assign the claims arising from the business relationship.

4. offsetting, right of retention

4.1
The customer shall only be entitled to set-off rights insofar as his counterclaim has been legally established or recognized by Oberhauser.

4.2
The customer may only base a right to refuse performance or a right of retention on claims arising from the same contractual relationship.

4.3
An assignment of claims is only permitted with the prior written consent of Oberhauser.

5. delivery, reservation of self-delivery, delay, force majeure, partial performance

5.1
Compliance with agreed delivery deadlines presupposes that the customer fulfills all obligations incumbent upon him properly and on time.

5.2
We reserve the right to correct and timely self-delivery.

5.3
If the customer is in default of acceptance or culpably violates other obligations to cooperate, Oberhauser shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses. Further claims or rights are reserved.

5.4
Insofar as the conditions in Section 5.3 are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the time at which the customer is in default of acceptance or debtor's delay.

5.5
Oberhauser shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of § 286 para. 2 no. 4 BGB or § 376 HGB. Oberhauser shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which Oberhauser is responsible, the customer is entitled to assert that his interest in the further fulfillment of the contract has ceased to exist.

5.6
Oberhauser shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which Oberhauser is responsible; fault on the part of its representatives or vicarious agents shall be attributed to Oberhauser. If the delay in delivery is due to a grossly negligent breach of contract for which Oberhauser is responsible, its liability for damages shall be limited to the foreseeable, typically occurring damage.

5.7
In addition, Oberhauser shall be liable in the event of a delay in delivery for each completed week of delay within the scope of a lump-sum compensation for delay in the amount of 0.5% of the delivery value, but not more than 5% of the delivery value.

5.8
Further legal claims and rights of the customer remain reserved.

6. Handover, transfer of risk, transportation

6.1
Unless otherwise agreed in individual cases, deliveries shall be made ex works 84494 Niederbergkirche, Rohrbach-Bahnhof 18.

6.2
If delivery is made to another location at the request of the customer, this shall be at the risk and for the account of the customer. The customer must inform Oberhauser in good time and in writing of any instructions regarding the type of shipment. They are only binding for Oberhauser if they are confirmed by Oberhauser in text form.

6.3
The risk of accidental loss and accidental deterioration shall pass to the customer in the case of delivery ex works as soon as the object of purchase has been made available to the customer. Otherwise, the risk of accidental loss and accidental deterioration shall pass to the customer upon handover of the object of purchase to the customer, at the latest upon handover of the object of purchase to the transport person. This also applies if partial services are provided or if Oberhauser has assumed additional services, such as transportation.

6.4
Oberhauser will only take out transport insurance on special instruction and at the expense of the customer.

6.5
Separate agreements apply to the return of packaging (see BGBl. I p. 212)

7. reservation of title

7.1
Oberhauser retains ownership of the purchased item until all payments from the business relationship with the customer have been received. In the event of breach of contract by the customer, in particular in the event of default in payment, Oberhauser shall be entitled to take back the purchased item. The taking back of the purchased item by Oberhauser constitutes a withdrawal from the contract. After taking back the purchased item, Oberhauser is authorized to sell it, the proceeds of the sale shall be set off against the customer's liabilities (less reasonable selling costs).

7.2
The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

7.3
In the event of seizure or other interventions by third parties, the customer must notify Oberhauser immediately in writing so that Oberhauser can file a lawsuit in accordance with § 771 ZPO. Insofar as the third party is not in a position to reimburse Oberhauser for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by Oberhauser.

7.4
The customer is entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to Oberhauser all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to him from the resale against his customers or third parties, regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Oberhauser's authority to collect the claim itself remains unaffected by this. However, Oberhauser undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have been suspended. If this is the case, however, Oberhauser may demand that the customer informs Oberhauser of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

7.5
The processing or transformation of the purchased item by the customer is always carried out for Oberhauser. If the purchased item is processed with other items not belonging to Oberhauser, Oberhauser shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.

7.6
If the purchased item is inseparably mixed with other items not belonging to Oberhauser, Oberhauser shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to Oberhauser on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership for Oberhauser.

7.7
The customer also assigns to Oberhauser the claims to secure Oberhauser's claims against him, which arise against a third party through the connection of the purchased item with a property.

7.8
Oberhauser undertakes to release the securities to which it is entitled at the customer's request insofar as the realizable value of our securities exceeds the claims to be secured by more than 10%; Oberhauser shall be responsible for selecting the securities to be released.

8. confidentiality

8.1
“Confidential Information” means all information, documents, records and data (whether in written, oral, visual, electronic or any other form), in particular all technical, scientific and business information, financial data, business and marketing information, know-how, manufacturing processes, concepts, drawings, plans, designs, specifications, data carriers, samples, measurement data, measurement analyses, reports, prototypes and project documents as well as all other information marked as “confidential” which is handed over, transferred or otherwise disclosed by one party (hereinafter “Disclosing Party”) to the other party (hereinafter “Receiving Party”) during the term of the contract. This also includes copies of this information in paper and electronic form.

8.2
All Confidential Information transmitted or otherwise made available by the Disclosing Party to the Receiving Party,

8.2.1
may only be used by the Receiving Party to fulfill the respective contractual purpose, unless otherwise expressly agreed in writing with the Disclosing Party.

8.2.2
may not be reproduced, distributed, published or passed on in any other form by the Receiving Party, unless this is necessary to fulfill the purpose of the contract or in connection with the commissioning of subcontractors or Oberhauser is obliged by law or official regulations to pass on Confidential Information, test reports and documentation to authorities or third parties involved in the performance of the contract.

8.2.3
The confidentiality obligations shall continue to apply for a period of 5 years after termination of the contract.

9. quality agreement, assembly

9.1
The object of purchase is in accordance with the contract if it is suitable for normal use or has a quality that is customary for items of the same type and that the customer can expect according to the type of item. Samples, brochure details or information resulting from other advertising material are non-binding guidelines.

9.2
Any agreement on quality deviating from these terms and conditions or the assumption of a guarantee must be confirmed in writing by Oberhauser in order to be effective. Oberhauser's employees are not authorized to make or give quality agreements or guarantees that go beyond the written contract and these terms and conditions. The power of representation of the managing directors and authorized signatories remains unaffected.

9.3
If Oberhauser supports the construction management or other personnel of the customer by its personnel in supervising the assembly or installation, Oberhauser shall only be liable for selecting professionally suitable personnel. Oberhauser shall not assume any tasks and activities of site management, specialist site management, site supervision, planning or coordination or assembly work. Furthermore, Oberhauser shall not be responsible for the professional, proper and drawing-compliant installation of the object of purchase.

10. Obligation to inspect and give notice of defects, claims for defects

10.1
Claims for defects on the part of the customer presuppose that he has fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code). Defects must be reported in writing.

10.2
If there is a defect in the purchased item, Oberhauser shall be entitled, at its discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of subsequent performance, Oberhauser shall be obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.

10.3
If the subsequent performance fails, the customer shall be entitled to demand withdrawal or a reduction in price at his discretion.

10.4
Oberhauser shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of its representatives or vicarious agents. Insofar as Oberhauser is not accused of intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.

10.5
Oberhauser shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; however, even in this case, liability for damages shall be limited to the foreseeable, typically occurring damage. An essential contractual obligation exists if the breach of duty relates to an obligation on the fulfillment of which the customer has relied and was entitled to rely.

10.6
Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

10.7
Unless otherwise stipulated above, liability is excluded.

10.8
The limitation period for claims for defects is 12 months, calculated from the transfer of risk.

10.9
The limitation period in the event of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.

11. extended durability guarantee for products in the Solar Mounting Systems division

11.1
Insofar as Oberhauser grants a warranty on the durability of the components or systems with the customer, the following provisions shall apply:

11.2
Unless otherwise agreed, a warranty period of 10 years shall apply. Insofar as a possible shorter service life is expressly stated for certain components in general or for a certain type of use, or a replacement within a shorter period is provided for within the framework of individual planning prepared by Oberhauser, the warranty period is limited to this service life or period. In the case of open-air steel support structures, the warranty period is expressly 5 years.

11.3
The guarantee is granted for the durability of the items purchased and only results in the claims specified below.

11.4
If, despite proper installation and handling, damage occurs to the purchased items under normal use, Oberhauser will replace the affected component immediately within the warranty period. The warranty is limited to the subsequent delivery and installation of the defective parts if the damage is reported within the warranty period. Any statutory warranty or liability claims remain unaffected.

11.5
The warranty obligation shall not apply if the damage was caused in connection with incorrect installation or handling of the system or in connection with exceptional stress (e.g. storm damage, impact due to instability of the substrate, special chemical or biological effects), unless the damage was demonstrably not caused by this, but essentially by a material or design defect. For installation and handling, the technical product descriptions and installation instructions supplied by us for the respective products, the legally prescribed or generally recognized standards and principles of architecture and, if applicable, the plans, statics and instructions prepared by us individually for the customer shall take precedence.

11.6
No claims can be made if the damage is covered by insurance against storms and similar events (natural hazards insurance) or can normally be covered.

11.7
This guarantee only justifies claims by the customer of Oberhauser, through whom all guarantee cases are to be processed. Assertion by third parties is only possible if Oberhauser agrees to this.

12. Liability, compensation for damages and expenses

12.1
Any further liability for damages other than that provided for in clause 11 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage pursuant to Section 823 BGB.

12.2
The limitation according to 11.1 also applies if the customer demands compensation for useless expenses instead of a claim for damages.

12.3
Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of Oberhauser's employees, workers, staff, representatives and vicarious agents.

13. applicable law, place of performance, place of jurisdiction

13.1
The law of the Federal Republic of Germany shall apply in its current version.

13.2
Unless otherwise stated in the purchase contract, Oberhauser's place of business shall be the place of performance.

13.3
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of business shall be the place of jurisdiction. However, Oberhauser is also entitled to sue the customer at the court of his place of residence.

13.4
In accordance with § 33 of the Federal Data Protection Act, we would like to point out that customer data is stored and used for business purposes.

Status January 2020