General:

These terms and conditions of business and delivery apply to contracts between DURAPARTS (hereafter: DURAPARTS) and customers, unless something different was expressly agreed in writing when the contract was concluded. Any conflicting provisions in the customer’s general terms and conditions are hereby expressly contradicted.

1. Conclusion of contract:

Offers are non-binding and subject to change in the sense of an invitation to submit an offer to the customer. A contract is only concluded with the written order confirmation or with delivery of the goods, based on a written or oral order.

2. Delivery/place of performance:

2.1. DURAPARTS undertakes to deliver the items described in the order confirmation and is entitled to make partial deliveries, which may be invoiced separately.

2.2. All deliveries are made ex works (EXW Incoterms 2010). When the goods are handed over to the customer, their representative or a freight forwarder, the risk is transferred to the customer in accordance with Section 446 of the German Civil Code (BGB). The same applies in the event of delay in acceptance or an unjustified refusal of acceptance by the customer.

2.3. Delivery deadlines are only binding if they are included in a written offer or written order confirmation from DURAPARTS. After binding delivery deadlines have expired, the customer must first set DURAPARTS a reasonable grace period with a declaration that they will reject the products after the deadline has expired. If this grace period expires without delivery, the customer can withdraw from the contract to the exclusion of any other claims – subject to any rights in accordance with Section 7.

2.4. Delivery and service deadlines are extended for the duration of the hindrance as well as an appropriate phase-out period, in the event of disruption due to force majeure and other obstacles for which DURAPARTS is not responsible, insofar as such obstacles – such as disruption in internal deliveries, strikes, lockouts, operational disruptions, etc. – occur the delivery or service of DURAPARTS has a significant influence. If delivery becomes permanently impossible or unreasonable due to such a disruption, DURAPARTS can finally withdraw from the contract.

2.5. If a fixed delivery date or a specific delivery period is bindingly agreed without any reservation, the following applies:

2.5.1. The delivery period begins on the day of the final order confirmation, but not before all implementation details have been fully clarified and not before the documents, approvals, releases to be obtained from the customer have been provided and any agreed deposit has been received.

2.5.2. The delivery deadline is deemed to have been met if the customer has been informed that the delivery item is ready for dispatch before or on the date it expires.

2.6. If the customer delays acceptance or requests a postponement, DURAPARTS is entitled to charge an additional 0.5% of the agreed net price per week.

3. Prices:

3.1. The prices result from the written offer made by DURAPARTS or from the written order confirmation.

3.2. For deliveries ex works/warehouse, the prices exclude freight/shipping costs, unless otherwise agreed, as well as statutory VAT and other statutory taxes and duties at the applicable rate.

3.3. All additional fees, public charges and any new taxes must be borne by the customer.

4. Payment terms:

4.1. Unless otherwise agreed, payments must be made within 14 days of the invoice date.

4.2. If the customer exceeds the agreed payment deadlines, interest of 12% p.a. will be charged from the due date, without the need for a prior reminder. a. above the respective discount rate of the Austrian National Bank on the purchase price, unless the customer proves that DURAPARTS incurred a significantly lower interest loss.

4.3. DURAPARTS is entitled to only carry out deliveries against advance payment if there are facts that indicate that the customer’s financial circumstances have deteriorated significantly after the conclusion of the contract, in particular if the customer does not pay DURAPARTS’ due claims and therefore DURAPARTS’ payment claims appear to be at risk. In this case, DURAPARTS can also suspend further services until all outstanding claims arising from the relevant contractual relationship or from economically related contracts or preliminary orders have been paid in cash by the customer or sufficient security has been provided.

5. Retention of title:

5.1. Until all of DURAPARTS’ remuneration claims arising from this contractual relationship as well as other existing claims from the ongoing business relationship with the customer have been settled in full, DURAPARTS reserves ownership of the delivered production (hereinafter “reserved goods”).

5.2. The customer may install and modify reserved goods as part of his normal business transactions. However, any connection, mixing, processing or transformation of the reserved goods is carried out exclusively for DURAPARTS, which corresponds to a co-ownership share in the finished goods or in the new item.

5.3. The customer is entitled to resell the reserved goods or items co-owned by DURAPARTS in the ordinary course of business subject to retention of title. The customer hereby assigns his future claims arising from the transfer of the reserved goods to the respective invoice value of the reserved goods until full payment of all amounts specified in Section 5.1. The security claims mentioned above are transferred to DURAPARTS, which accepts this assignment. If DURAPARTS only has a co-ownership share in the items sold, the claims are assigned in the amount of the sales value of this share, but with priority over the other claims. At the request of DURAPARTS, the customer will inform DURAPARTS of the names and addresses of the relevant customers as well as the nature and extent of his existing claims against them. DURAPARTS may disclose this assignment at any time to secure its payment claims. The customer is not permitted to pledge or assign reserved goods as security.

5.4. If third parties access the reserved goods, the customer will point out the ownership of DURAPARTS and immediately notify DURAPARTS in writing. The customer bears all costs of an investment procedure and other defensive measures in connection with such third-party access.

5. Retention of title:

5.1. Until all of DURAPARTS’ remuneration claims arising from this contractual relationship as well as other existing claims from the ongoing business relationship with the customer have been settled in full, DURAPARTS reserves ownership of the delivered production (hereinafter “reserved goods”).

5.2. The customer may install and modify reserved goods as part of his normal business transactions. However, any connection, mixing, processing or transformation of the reserved goods is carried out exclusively for DURAPARTS, which corresponds to a co-ownership share in the finished goods or in the new item.

5.3. The customer is entitled to resell the reserved goods or items co-owned by DURAPARTS in the ordinary course of business subject to retention of title. The customer hereby assigns his future claims arising from the transfer of the reserved goods to the respective invoice value of the reserved goods until full payment of all amounts specified in Section 5.1. The security claims mentioned above are transferred to DURAPARTS, which accepts this assignment. If DURAPARTS only has a co-ownership share in the items sold, the claims are assigned in the amount of the sales value of this share, but with priority over the other claims. At the request of DURAPARTS, the customer will inform DURAPARTS of the names and addresses of the relevant customers as well as the nature and extent of his existing claims against them. DURAPARTS may disclose this assignment at any time to secure its payment claims. The customer is not permitted to pledge or assign reserved goods as security.

5.4. If third parties access the reserved goods, the customer will point out the ownership of DURAPARTS and immediately notify DURAPARTS in writing. The customer bears all costs of an investment procedure and other defensive measures in connection with such third-party access.

6. Warranty:

6.1. The warranty period is six months from the transfer of risk.

6.2. Durability guarantees for wearing parts are not given.

6.3. The customer will immediately examine the delivery items for any errors or defects and report these to DURAPARTS in writing within 5 working days after delivery. Hidden defects must also be reported to DURAPARTS in writing immediately after becoming aware of them. Within this warranty period, DURAPARTS will remedy, free of charge, any defects that can be proven to have existed before the transfer of risk, exclusively through replacement delivery or repair on site or in the factory, at DURAPARTS’s discretion. Replaced parts become the property of DURAPARTS. If a replacement delivery or improvement is not successful, DURAPARTS refuses a replacement delivery or improvement or if a replacement delivery or improvement is not carried out within a reasonable period of time, the customer can demand cancellation of the contract or a reduction in the price.

7. Liability:

7.1. DURAPARTS, the business owner Stephan Schwarzhoff and other executives of DURAPARTS are liable for fault, conclusion of contract, positive breach of contract, delay, impossibility, tort or other legal reason only in the event of intent, gross negligence or breach of cardinal contractual obligations. In the event of delay or impossibility, the customer alternatively has the right to terminate the contract after a reasonable grace period of at least four weeks. In the event of a breach of mayor obligations, the amount of damages is limited to compensation for typical, foreseeable damage.

7.2. Legal liability under the Product Liability Act remains unlimited to the extent permitted by law.

7.3. To the extent that DURAPARTS is liable for a culpable violation of essential contractual obligations (cardinal obligations), this liability is limited to 100,000 euros for personal and property damage and 10,000 euros for pure financial loss, provided there is no intent or gross negligence. This limitation of liability also applies in the event of intent or gross negligence on the part of DURAPARTS employees who are not executive bodies or executives.

7.4. Liability for indirect damages, consequential damages or lost profits is excluded unless liability is based on intent or gross negligence on the part of DURAPARTS’s executive bodies or executives or in the absence of a guaranteed feature.

7.5. Any liability is limited to such typical damages, the occurrence of which DURAPARTS could reasonably have foreseen when the contract was concluded based on the circumstances known at the time.

8. Other:

8.1. The customer is only entitled to declare a set-off or to assert a right of retention, including that under Section 369 of the German Commercial Code (HGB), if the corresponding claim is undisputed or has been legally established by a court.

8.2. In order to be effective, changes and additions to the contract and these terms and conditions of business and delivery require a waiver of this written form requirement in the individual case.

8.3. Should one of the above provisions be or become ineffective, this will not affect the validity of the rest of the contract. The parties will replace an ineffective regulation with one that comes closest to the economic purpose pursued.

8.4. Austrian law applies exclusively. The regulations of the UN Convention on Contracts for the International Sale of Goods are excluded.

8.5. The place of performance for all deliveries from this contract is the headquarters of DURAPARTS. The place of jurisdiction for all possible legal disputes arising from the contract is Gmunden.