General Terms and Conditions of Business

Section 1 General, scope of application

(1) These General Terms and Conditions of Business form the exclusive basis for all legal relationships established between citkar GmbH, Pyramidenring 12, 12681 Berlin, Germany, (hereinafter: “citkar”) and its customers. citkar shall not accept any conditions of the customer which conflict with or deviate from these unless citkar expressly agrees to their validity in writing. These General Terms and Conditions of Business shall also apply if, in full knowledge of  any conflicting or deviating conditions of the customer, citkar renders any performance to the customer without reservation of rights.

(2) As defined by these terms and conditions of business, customers are exclusively entrepreneurs pursuant to 310/1 BGB (German Civil Code).

(3) The General Terms and Conditions of Business shall apply in the version valid at the time the contract is concluded.

Section 2 Offer, offer documents

(1) If, pursuant to Section 145 BGB (German Civil Code), the customer’s order qualifies as an offer, citkar may accept it within two weeks in the form of a written order confirmation.

(2) citkar reserves all property rights and copyrights to illustrations, drawings, calculations and other documentation. This also applies to such written documentation designated as “confidential”. The customer must obtain the express written consent of citkar prior to disclosing these to any third parties.

Section 3 Prices, terms of payment

(1) Unless otherwise stated in the order confirmation, citkar’s prices are “ex-factory” and do not include any packaging; this shall be invoiced separately.

(2) Citkar’s prices do not include any statutory value added tax; this shall be listed as a separate item on the invoice at the statutory rate on the day of invoicing.

(3) Any deductions for discounts shall require a separate written agreement.

(4) Unless otherwise stated in the order confirmation, the net purchase price (without any deduction) shall be due for payment within 30 days from the date of invoice. In the event of payment default, the statutory regulations on the consequences of payment default shall apply.

(5) The customer shall only have the right to offset any rights if its counterclaims have been legally established, undisputed, or recognised by citkar. The customer shall only have the right to exercise a right of retention if its counterclaim is based on the same contractual relationship.

Section 4 Delivery times

(1) The start of the delivery period stated by citkar shall be subject to prior clarification of all technical issues.

(2) Compliance with citkar’s delivery obligation shall further be subject to the timely and proper fulfilment of the customer’s obligation. Citkar shall reserve the right to object to any unfulfilled contracts.

(3) If the customer is in default of acceptance or culpably violates other duties to cooperate, citkar shall have the right to demand compensation for any damage incurred in this respect, including any additional expenses. The right to assert any further claims remains reserved.

(4) To the extent that the requirements as stated in point (3) have been met, the customer shall be responsible for any risk of accidental loss or any accidental deterioration of the sales object from the time at which the customer is in default of acceptance or has debt obligations.

(5) Insofar that the respective purchase contract is defined by Section 286/2 or 4 BGB (German Civil Code) or Section 376 HGB (German Commercial Code) as a fixed date transaction, citkar shall be liable in accordance with statutory provisions. citkar shall also be liable in accordance with statutory provisions if, because of a delay in delivery for which citkar is responsible, the customer is entitled to claim that it is no longer interested in the further performance of the contract.

(6) Furthermore, in accordance with the statutory provisions, citkar shall be liable for any delay in delivery due to an intentional or grossly negligent breach of contract for which citkar is responsible; any fault caused by its representatives or vicarious agents shall be attributable to citkar. If the delay in delivery is due to a grossly negligent breach of contract for which it is responsible. citkar’s liability for damages is limited to any damage that is foreseeable or which may typically occur.

(7) If, due to any culpable breach of an essential contractual obligation, citkar is responsible for the delay in delivery, citkar shall also liable according to statutory provisions; in such case, however, citkar’s liability for damages is limited to any damage that is foreseeable or which may typically occur.

(8) Any further legal claims and rights of the customer shall remain reserved.

Section 5 Transfer of risk, packaging costs

(1) Unless otherwise stated in the order confirmation, delivery shall be “ex-factory”.

(2) Separate agreements shall be made to return any packaging to citkar.

(3) Upon customer request, citkar shall insure the transport for the delivery; the customer shall bear any costs incurred in this respect.

Section 6 Liability for defects

(1) In accordance with Section 377 HGB (German Commercial Code), customer claims asserted for defects shall be made on the provision that  the customer has duly satisfied the obligations to examine the goods and provide notification of any defects.

(2) If there is a defect in the sales object, the customer shall have the right at its discretion to request the defect be rectified or to request the delivery of a new item free of any defect. Should the defect be rectified, or a replacement delivered, citkar shall be obliged to bear all expenses necessary for this subsequent performance, in particular for transport, travel, labour and material costs, insofar as these do not increased due to the sales object being delivered to a place other than the place of performance.

(3) In the event that the rectification fails, the customer shall at its discretion have the right to withdraw from the contract or to demand a reduction.

(4) If the customer asserts any claims for damages based on intent or gross negligence, including intent or gross negligence on the part of citkar’s representatives or vicarious agents, citkar shall be liable in accordance with statutory provisions. Insofar as citkar is not accused of any intentional breach of contract, liability for damages shall be limited to damage that is foreseeable or which may typically occur.

(5) If citkar culpably breaches any essential contractual obligation, it shall be liable in accordance with statutory provisions. Here too, the liability for damages is limited to any damage that is foreseeable or which may typically occur.

(6) If, due to a negligent breach of duty, the customer has the right to damage compensation instead of any subsequent performance, citkar’s liability shall be limited to compensation for damage that is foreseeable or which may typically occur.

(7) Liability for culpable injury to life, body or health shall remain unaffected; this also applies to mandatory liability in accordance with the Product Liability Act.

(8) Unless otherwise stipulated above, liability is excluded.

(9) The limitation period for warranty claims is 24 months, calculated from the transfer of risk.

(10) The limitation period in the case of a delivery recourse according to Sections 478, 479 BGB (German Civil Code) shall remain unaffected; calculated from the delivery of the defective item, it shall constitute five years.

Section 7 Joint liability

(1) Any further liability for damages than provided for in Section 6 shall be excluded, irrespective of the legal nature of the asserted claim. Pursuant to Section 823 BGB (German Civil Code), this shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for damaged property.

(2) The limitation as set forth in point (1) shall also apply insofar as the customer demands compensation for useless expenses instead of a claim for damage compensation.

(3) Insofar as the liability for damages towards citkar is excluded or limited, this shall also apply with regard to the personal liability for damages of citkar’s employees, representatives and vicarious agents.

Section 8 Retention of title

(1) citkar shall retain the title of the sales object until all payments from the delivery contract have been received.  In the event that the customer behaves in such a way that is contrary to the contract, in particular in the event of payment default, citkar shall have the right to repossess the sales object. If citkar repossesses the sales object, this shall constitute a withdrawal from the contract. After the sales object has been repossessed, citkar shall have the right to resell it; the revenue from this sale shall be used to reduce the customer’s debts – minus any appropriate utilisation costs.

(2) The customer shall be obliged to treat the sales object with care; in particular, the customer, at its own expense, shall be obliged to sufficiently insure it at replacement value against fire damage, water damage and theft. If any maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

(3) In the event of seizures or other interventions by third parties, the customer must notify citkar in writing without delay to enable citkar can bring legal action in accordance with Section 771 ZPO (German Code of Civil Procedure). Insofar as the third party, pursuant to Section 771 ZPO (German Code of Civil Procedure), is not in a position to reimburse citkar for the judicial and extrajudicial costs of legal action, the customer shall be liable for any losses incurred by citkar.

(4) The customer shall have the right to resell the sales object in the ordinary course of business; in such case, it shall, however, assign to citkar all claims in the amount of the final invoice (including VAT) it owes to accruing to it against its customers or third parties from the resale, irrespective of whether the sales object has been resold without, or after having undergone, processing. Even after the assignment, the customer shall be authorised to collect this claim. This does not affect citkar’s authority to collect the claim itself. citkar, however, shall undertake not to collect the claim as long as the customer meets its payment obligations from the revenue collected, 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 not been suspended. Should this be the case, however, citkar may demand that the customer informs citkar 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.

(5) The processing or transformation of the sales object by the customer is always carried out on behalf of citkar. If the sales object e is processed with other objects that do not belong to citkar, citkar shall acquire co-ownership of the new object in the ratio of the sales object’s value (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the sales object delivered under reservation.

(6) If the sales object is processed with other objects that do not belong to citkar, citkar shall acquire co-ownership of the new object in the ratio of the sale object’s value (final invoice amount, including VAT) to the other processed objects at the time of processing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is deemed agreed that the customer shall transfer co-ownership to citkar on a pro rata basis. The customer shall then retain the sole or co-ownership of the resulting item on behalf of citkar.

(7) citkar shall undertake to release the securities to which it is entitled at the customer’s request insofar as the realisable value of citkar’s securities exceeds the claims to be secured by more than 10 %; the choice of the securities to be released is incumbent on citkar.

Section 9 Place of jurisdiction, place of performance

(1) citkar’s registered office is the place of jurisdiction. citkar shall also have the right to sue the customer at the court of its place of residence.

(2) The law of the Federal Republic of Germany shall apply.

(3) Unless otherwise stated in the order confirmation, the place of performance shall be citkar’s business location.