General terms and conditions for dealer

Version: November 2022

Section 1 Scope of Application

1. These General Terms and Conditions (GTC) form an integral part of the contract. They apply to all deliveries and services (hereinafter referred to as "Deliveries") provided by Parador GmbH (hereinafter referred to as the "Supplier") to the Buyer.
2. Any deviating or supplementary terms and conditions of the Buyer shall not be recognized by the Supplier unless the Supplier has expressly agreed to their validity in writing (cf. Section 1 No. 4 of these GTC). This shall also apply if the Supplier has not expressly objected, has performed the Delivery without reservation, or has accepted payments.
3. These GTC apply exclusively to business transactions with entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law, and special funds under public law. Within the framework of an ongoing business relationship, these GTC shall also apply to all future Deliveries by the Supplier.
4. Legally relevant declarations and notifications made by the Buyer with regard to the contract (e.g. setting deadlines, notification of defects, withdrawal, or price reduction) must be submitted in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and additional proof, particularly in cases of doubt regarding the authority of the declaring party, shall remain unaffected.

Section 2 Conclusion of the Contract

1. Offers and quotations on websites, in catalogs, or price lists of the Supplier are non-binding. In the event of an order, a contract shall only come into existence upon acceptance by the Supplier or upon delivery of the goods. The Buyer shall remain bound by its order for 14 days. The order confirmation may be issued by post, fax, e-mail, via the Internet, electronically, or in text form. In the event of deviations in the order confirmation, the Buyer is obliged to object within one week of receipt.
2. Images are for illustrative purposes only and may differ from the actual product. Technical data, weight, dimensions, and performance specifications are stated as accurately as possible but may be subject to minor deviations, for example with regard to materials, design, or dimensions. Such deviations shall not constitute a defect in the products supplied by the Supplier.
3. Any amendment or cancellation of an order within the 14-day binding period or after the order confirmation requires the Supplier's prior written consent.

Section 3 Shipment and Transfer of Risk

1. In the case of deliveries only, the risk shall pass to the Buyer upon segregation of the goods and notification that they are ready for shipment, and no later than when the goods leave the supplying factory. Acceptance may not be refused due to insignificant defects. Furthermore, the risk shall pass to the Buyer if the Buyer is in default of acceptance.
2. Transport damage must be reported immediately upon delivery to the transport company, specified on the consignment note, and reported to the Supplier immediately in writing or in text form. If, at the Buyer's request, the Supplier takes out insurance against breakage or other transport damage, the costs shall be borne by the Buyer.

Section 4 Delivery Times and Deadlines

1. Delivery dates or delivery periods shall only be deemed approximate unless they have been expressly confirmed by the Supplier in writing as binding.
2. If the Supplier has confirmed a delivery period as binding, it shall, in case of doubt, commence on the date of the written order confirmation, but not before receipt of any agreed advance payment in the Supplier's account. If performance depends on the Buyer's cooperation, the delivery period shall not commence until the Buyer has fulfilled its obligations to cooperate.
3. The Supplier's obligation to deliver shall be suspended for as long as the Buyer is in default with payment obligations arising from this or any other contractual relationship with the Supplier.
4. Any grace period must be granted to the Supplier in writing. As a rule, it shall only be considered reasonable if it amounts to at least four weeks from receipt by the Supplier, unless exceptional circumstances make such a grace period unreasonable for the Buyer.
5. If the Supplier is in default after expiry of a reasonable grace period, the Buyer may claim lump-sum compensation for damages caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but not more than 5% of the delivery value of the delayed goods in total. The Supplier reserves the right to prove that the Buyer has suffered no damage at all or substantially less damage than the above lump-sum amount. This limitation shall not apply in cases of intent or gross negligence. The above provisions do not involve any reversal of the burden of proof.
6. If goods are sold on call, the Buyer shall be obliged to accept the agreed delivery quantity in full within the agreed delivery period; no right of withdrawal shall exist. After expiry of the agreed delivery period, the Supplier shall be entitled to deliver goods not called off within a reasonable period, and the Buyer shall be obliged to accept them. If the Buyer fails to call off goods in due time, it may not demand compliance with specific deadlines. If the goods are stored at the Supplier's premises, the Supplier may charge at least 1% of the contract price of the stored goods per month. Both parties reserve the right to prove higher or lower costs.

Section 5 Force Majeure and Unavailability of Performance

1. If the Supplier is temporarily prevented from performing its obligations in whole or in part due to force majeure or other unforeseeable, extraordinary circumstances beyond its control, or if performance is significantly impeded, any agreed delivery period shall be extended by the duration of such impediment. The same shall apply to any deadline set by the Buyer for performance (cf. Section 4 No. 4), in particular grace periods pursuant to Sections 281 (1) and 323 (1) of the German Civil Code (BGB).
2. Before the expiry of the extended delivery period pursuant to No. 1 above, the Buyer shall neither be entitled to withdraw from the contract nor to claim damages. The exclusion of the right of withdrawal shall end if the impediment lasts longer than two months; in this case, the Supplier shall also be entitled to withdraw from the contract. Any contractual or statutory right of the Buyer to withdraw from the contract without granting a grace period shall remain unaffected.
3. Events of force majeure include, in particular, war, war-like conditions, mobilization, import and export restrictions, and blockades. Other unforeseeable, extraordinary circumstances beyond the Supplier's control include, in particular, transport disruptions, operational interruptions, delays in the delivery of raw materials, strikes, lockouts, and other labor disputes, including those affecting the Supplier's own suppliers. The Supplier shall inform the Buyer of the beginning and end of such impediments.
4. If the Supplier is unable to comply with binding delivery periods for reasons beyond its control (unavailability of performance), it shall inform the Buyer thereof without undue delay and at the same time notify the Buyer of the expected new delivery period. If performance is also unavailable within the new delivery period, the Supplier shall be entitled to withdraw from the contract in whole or in part. Any consideration already provided by the Buyer shall be reimbursed without undue delay. Unavailability of performance shall include, in particular, failure by the Supplier's own supplier to deliver on time, provided that the Supplier has concluded a corresponding covering transaction, neither the Supplier nor its supplier is at fault, or the Supplier is not obliged to procure the goods for other reasons in the individual case.
5. The Buyer's rights pursuant to Section 8 of these GTC and the statutory rights of both parties, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

Section 6 Prices and Terms of Payment

1. Unless otherwise agreed in writing, all invoices issued by the Supplier are payable net within 30 days of receipt of the Delivery. This also applies to invoices for partial deliveries. Compliance with the payment deadline shall be determined solely by receipt of the payment in the Supplier's bank account. Any costs or fees associated with payment processing shall be borne by the Buyer.
2. Unless otherwise agreed, the Supplier's prices are ex works and exclusive of shipping costs, packaging, value added tax, and any other ancillary charges. The Buyer may not assert claims arising from bonus agreements or agreed cash discounts while in default with payment obligations arising from the business relationship. Cash discounts shall be calculated on the basis of the net invoice amount after deduction of rebates, freight charges, pallets, and services. In the event of a returned direct debit, the Buyer shall reimburse the Supplier for any bank charges incurred as a result, provided the Buyer is responsible for the return. If the Buyer has granted the Supplier a SEPA direct debit mandate, collection shall take place on the due date. The Supplier shall notify the Buyer of the SEPA direct debit at least one day before the due date. Assignment of the Buyer's rights against the Supplier to third parties shall not be permitted without the Supplier's consent. The Supplier shall not unreasonably withhold such consent. The Buyer shall only be entitled to rights of set-off or retention insofar as its counterclaims have been finally adjudicated or are undisputed.
3. If raw material, energy, or labor costs increase between the conclusion of the contract and performance, the Supplier shall be entitled to demand a corresponding adjustment of the agreed price.

Section 7 Cancellations and Goodwill Returns

If the Supplier accepts the return of defect-free goods, in whole or in part, without being under any legal obligation to do so (goodwill return), provided that the goods are returned freight prepaid to the supplying plant and accompanied by the relevant invoice, the Buyer shall pay a handling fee of at least 20% of the value of the returned goods. Custom-made products free of defects and goods specially procured at the Buyer's request (commissioned goods) are generally excluded from any goodwill return. If the Supplier accepts the cancellation of binding orders that have already been confirmed by an order confirmation, a cancellation fee amounting to 10% of the order value shall be charged.

Section 8 Buyer's Financial Standing

If, after conclusion of the contract, circumstances become apparent that give rise to justified doubts regarding the Buyer's solvency or creditworthiness (Section 321 German Civil Code), the Supplier shall be entitled to refuse performance until the Buyer has rendered the counter-performance or provided adequate security. The Supplier may request the Buyer to make payment or provide security within two weeks and may withdraw from the contract if this period expires without result.

Section 9 Warranty

1. If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), the Buyer shall inspect the goods immediately upon delivery and notify the Supplier in writing without undue delay of any apparent defects. Hidden defects must be reported in writing immediately after their discovery. Otherwise, the goods shall be deemed approved. If the Buyer fails to notify the Supplier of defects in due time, the Supplier's liability for apparent defects that were not reported in time shall be excluded in accordance with the statutory provisions.
2. Goods that have been complained about or are obviously defective may not be resold, installed, or otherwise used by the Buyer. If the Buyer breaches this obligation, the Supplier shall not be liable for any damage resulting from the processing or other use of the goods. Furthermore, the Buyer shall bear any additional costs incurred in connection with subsequent performance due to the resale, installation, or other use of the goods.
3. If the goods are defective at the time the risk passes, the Supplier shall, at its discretion, provide subsequent performance by repairing the goods or delivering replacement goods. In this case, the Buyer shall not be entitled to reimbursement of removal and installation costs. To the extent that the Supplier is legally obliged to bear removal and installation costs within the scope of subsequent performance under a sales contract, the Buyer's claim for reimbursement of such costs shall, where replacement delivery is the only possible form of subsequent performance, be limited to an amount appropriate in relation to the value of the defective goods and the significance of the breach of contract. If subsequent performance fails, the Buyer may, at its discretion, withdraw from the contract or reduce the purchase price.
4. As a general rule, the Supplier shall be entitled to make the owed subsequent performance conditional upon the Buyer paying the outstanding invoice amount. However, the Buyer may withhold a reasonable portion of the invoice amount in proportion to the defect.
5. Section 10 shall apply to claims for damages and reimbursement of expenses. Any further claims arising from defects are excluded.

Section 10 Liability

1. Regardless of the legal basis (contract, tort, breach of contractual obligations, etc.), the Supplier shall not be liable for damages or reimbursement of expenses. This shall not apply to liability under the German Product Liability Act, in cases of intent or gross negligence, in the event of culpable injury to life, body, or health, or in the event of a breach of essential contractual obligations. Essential contractual obligations are those obligations whose fulfilment is a prerequisite for the proper execution of the contract and on whose performance the Buyer regularly relies and may reasonably rely. However, liability for the breach of essential contractual obligations shall be limited to the foreseeable damage typically arising from such a breach, unless the Supplier is liable due to intent, gross negligence, injury to life, body or health, or under the German Product Liability Act. The Supplier shall not be liable for gratuitous acts of assistance, such as helping the Buyer to load a vehicle. To the extent that the Supplier's liability is excluded or limited, this shall also apply to the personal liability of its legal representatives, employees, and agents.
2. The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not constitute a defect if the Supplier is responsible for the breach. Any unrestricted statutory right of termination by the Buyer (in particular pursuant to Sections 651 and 649 of the German Civil Code) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

Section 11 Retention of Title

1. The delivered goods shall remain the property of the Supplier until the purchase price has been paid in full and all existing and future claims arising from the business relationship, irrespective of their legal basis, have been settled. The Buyer shall insure the goods subject to retention of title against fire, burglary, and water damage to an adequate extent. Insurance claims shall be deemed assigned to the Supplier up to the amount of its outstanding claims. If goods subject to the Supplier's retention of title are seized, the Buyer shall immediately notify the bailiff and the enforcing creditor accordingly. The Buyer shall also notify the Supplier immediately by telephone and subsequently in writing of the seizure and of the notification given to the bailiff and creditor. The seized goods must be identified precisely. The Buyer shall bear all costs arising from any intervention.
2. Any processing of the reserved goods shall be carried out for the Supplier as manufacturer without creating any obligation on the part of the Supplier. If the reserved goods are processed, combined, or mixed with materials not owned by the Supplier, the Supplier shall acquire co-ownership of the new item in proportion to the purchase price of the reserved goods relative to the value of the new item. If the Supplier's ownership expires due to combination or mixing, the Buyer hereby transfers co-ownership of the new item to the Supplier in the same proportion and shall hold the item in safekeeping for the Supplier. The retention of title shall also extend to the new item created by processing, combination, or mixing or, where the Supplier does not become sole owner, to the corresponding co-ownership share in the new item.
3. The Buyer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. The Buyer hereby assigns to the Supplier all claims arising from the resale up to the amount of the purchase price of the reserved goods. If the reserved goods are resold together with other goods not owned by the Supplier, or if the Supplier holds only a co-ownership share in the resold goods, the assignment shall apply only to the amount corresponding to the purchase price of the reserved goods. If the Buyer includes the claim arising from the resale in a current account relationship with its customer, the acknowledged balance shall replace the individual claim and shall be assigned up to the respective purchase price of the reserved goods.
4. The Buyer also assigns to the Supplier any claims arising against third parties through the incorporation of the reserved goods into real property, up to the amount of the purchase price of the reserved goods. The Buyer shall remain authorized to collect such claims until this authorization is revoked by the Supplier. The Supplier shall be entitled to revoke the Buyer's authorization to resell and/or collect claims if the Buyer defaults on payment or if a significant deterioration in the Buyer's financial situation becomes apparent, thereby jeopardizing the Supplier's claims, in particular in the event of suspension of payments or an application for insolvency proceedings (hereinafter referred to as a "Security Event"). Upon the Supplier's request, the Buyer shall notify its customers of the assignment upon occurrence of a Security Event. If the realizable value of the securities exceeds the claims to be secured, the Supplier shall, upon request, release the excess security.
5. Upon the occurrence of a Security Event, the Supplier shall be entitled to demand the return of the goods subject to retention of title or to collect them itself. In the latter case, the Buyer shall tolerate such collection and grant the Supplier access to the goods. If the goods are returned, the Buyer shall bear all costs of return shipment and shall make the goods available in a condition suitable for transport.
6. As a flat-rate depreciation allowance, the Supplier may charge 40% (forty percent) of the agreed net purchase price of the goods during the first six months after delivery and an additional 10% (ten percent) for each subsequent full quarter. The Buyer shall remain entitled to prove that no depreciation or substantially lower depreciation has actually occurred.

Section 12 Limitation Period

Claims by the Buyer arising from defects shall become time-barred one year after delivery. In the case of work performance, the limitation period shall commence upon acceptance of the work. This shall not apply: (a) in the case of Section 438 (1) No. 1 BGB (third-party rights in rem); (b) Section 438 (1) No. 2 BGB (goods used for a building in accordance with their customary use and causing the defectiveness of the building) or Section 634a No. 2 BGB (buildings or works consisting of planning or supervisory services for buildings); (c) claims for recourse pursuant to Section 479 (1) BGB; (d) fraudulent concealment; (e) claims for damages based on intent or gross negligence, injury to life, body or health, or liability under the German Product Liability Act; and (f) claims for subsequent performance, withdrawal from the contract or price reduction arising from a consumer goods purchase pursuant to Section 475 (2) BGB. Repairs or repeated performance of deliveries shall generally be carried out by the Supplier as a gesture of goodwill and without acknowledgment of any legal obligation. An acknowledgment resulting in the recommencement of the limitation period shall only exist if the Supplier expressly declares this to the Buyer.

Section 13 Data Protection

The Supplier collects, processes, and uses the Buyer's personal data (e.g. name, profession, industry or business designation, telephone number, address, e-mail address, date of birth) for the purpose of establishing, performing, or terminating contractual or quasi-contractual legal relationships with the Buyer. For the purposes of credit assessment and creditworthiness checks, the Supplier may, to the extent permitted by law, transmit the Buyer's personal data to credit agencies or companies serving a comparable purpose. The Supplier shall obtain credit information based on mathematical-statistical methods using address data. The Buyer may obtain information from the Supplier free of charge regarding the personal data stored about them.

Section 14 Applicable Law and Place of Jurisdiction

1. The laws of the Federal Republic of Germany shall apply, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. If the Buyer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from the contractual relationship between the Buyer and the Supplier shall, at the Supplier's discretion, be either the Supplier's registered office or the Buyer's registered office.
3. In the event of default, the Buyer shall reimburse the Supplier for all costs incurred in connection with judicial or extrajudicial legal enforcement proceedings abroad, even if the applicable foreign law does not provide for a reimbursement of costs comparable to German law. The Buyer's obligation to reimburse such costs shall arise as soon as the Supplier has engaged the assistance of a third party to enforce its rights.
4. Should any individual provision of these Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected.