General Terms and Conditions of Sale

of Excelsior Armory GmbH, Am Schürholz 3, 49078 Osnabrück

1.General Provisions
1.1 These General Terms and Conditions of Sale (“GTC”) apply to all our business relationships with our customers (“Buyer”). The GTC apply only if the Buyer is an entrepreneur within the meaning of § 14 BGB, a legal entity under public law or a special fund under public law.

1.2 The GTC apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the Buyer’s order or, in any case, in the version last communicated to the Buyer in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.

1.3 Our GTC apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This consent requirement applies in any case, for example even if the Buyer refers to his GTC in the context of the order and we do not expressly object.

1.4 Individual agreements (e.g. framework supply contracts, quality assurance agreements) and information in our order confirmation shall take precedence over the GTC. In case of doubt, trade clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

1.5 Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notification of defects, withdrawal or price reduction) must be made in writing. In the sense of these GTC, “in writing” includes both written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in case of doubts about the legitimacy of the declarant, shall remain unaffected.

1.6 References to the applicability of statutory provisions shall have only a clarifying meaning. Therefore, the statutory provisions shall also apply without such clarification, unless they are directly amended or expressly excluded in these GTC.

2. Conclusion of Contract and Delivery Period

2.1 Our offers are non-binding and subject to change unless expressly stated otherwise. The Buyer’s order of Goods shall be deemed a binding contractual offer. Any errors in sales brochures, price lists, offer documents or other documentation of Excelsior caused by mistake may be corrected by Excelsior without Excelsior being liable for damages arising from such errors. Dimensions, weights, illustrations, descriptions and other information regarding Excelsior products stated in a prospectus, catalogue, cost estimate or offer or otherwise communicated shall serve only for information purposes and shall only become binding contractual content if and to the extent that Excelsior expressly agrees to them in writing. This applies in particular to information on suitability for use and performance.

2.2 Unless otherwise stated in the order, we are entitled to accept the contractual offer within 5 days of receipt by us by means of an order confirmation (in writing or in text form, in particular by e-mail), by delivering the Goods to the Buyer or by dispatching the Goods to the Buyer.

2.3 The delivery period shall be individually agreed or stated by us upon acceptance of the order. If this is not the case, the period shall be 12 weeks from the conclusion of the contract. If we are unable to meet binding delivery periods for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time notify the expected new delivery period. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already provided by the Buyer. Non-availability of the service exists, for example, in the event of disruptions in the supply chain, force majeure, difficulties in obtaining necessary official approvals, incorrect or untimely delivery by suppliers or similar events. Such events shall release Excelsior from the obligation to deliver or perform on time for their duration. Events pursuant to point 2.3 include in particular the outbreak of an epidemic and/or pandemic (e.g. COVID-19) and its recurrence at a later date as well as the resulting consequences (e.g. factory closures at Excelsior and/or Excelsior suppliers, material shortages, quarantine measures and official orders that restrict or exclude normal business operations). Agreed deadlines shall be extended by the duration of the disruption; the customer shall be informed of the occurrence of the disruption in an appropriate manner. If the end of the disruption is not foreseeable or if it lasts longer than three months, either party shall be entitled to withdraw from the contract with regard to the affected scope of performance. Compliance with the deadlines and dates by Excelsior presupposes that the customer has provided all necessary information, quality specifications and documents required for the execution of the delivery/performance in good time, has performed all other acts of cooperation incumbent upon him and has made any agreed advance payments in accordance with the agreement. The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. The rights of the Buyer pursuant to Clause 7 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected. The customer is entitled to claim damages for delay, provided that such damage has actually occurred. The damages to be paid shall amount to ½ % for each full week of delay, but in total no more than 5 % of the invoice value of the deliveries and services with respect to which Excelsior is in default.

3. Delivery
3.1 The Incoterms agreed between the parties in accordance with the offer and order confirmation shall apply. Otherwise, deliveries shall be made ex works of Excelsior. The customer shall bear the shipping costs. At the request and expense of the Buyer, the goods shall be shipped to another destination (shipment purchase). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular the transport company, shipping route, packaging) ourselves. Excelsior shall charge the packaging of the products at cost price. Packaging shall be carried out at Excelsior’s discretion unless special agreements or instructions exist. Excelsior is entitled to make partial deliveries and partial performances insofar as this is reasonable for the customer.

3.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of a shipment purchase, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the carrier, freight forwarder or other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to an agreed acceptance. Handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.

3.3 If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). The claim shall amount to a flat rate of 0.5% of the price of the affected delivery volume for each commenced calendar week, beginning with the default of acceptance or the otherwise relevant delay. The flat-rate claim for additional expenses is limited to a maximum of 10% of the price of the affected delivery volume. Proof of higher damage as well as statutory claims of Excelsior (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected; however, the flat-rate claim shall be offset against further monetary claims. The customer is permitted to prove that Excelsior has incurred no damage or only significantly less damage than the above flat rate.

4. Prices and Payment Terms
4.1 Unless otherwise agreed in the individual case, our respective current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT. In the case of product imports into countries outside Germany, export restrictions may exist and import duties and taxes may be incurred, which the customer shall bear. These vary in different customs territories. The customer is responsible for the proper payment of the necessary duties, taxes and fees.

4.2 In the case of a shipment purchase, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the actual transport costs incurred in the individual case, a flat-rate transport cost (excluding transport insurance) of 200 EUR shall be deemed agreed. Any duties, fees, taxes and other public charges shall be borne by the Buyer.

4.3 The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation. Payments by the customer must be made by bank transfer and shall only be deemed made when and to the extent that the amount has been received in Excelsior’s account. The customer warrants that all information provided when placing the order (e.g. company, name, address, e-mail address, delivery address, bank details, etc.) is true and correct. Changes must be notified immediately.

4.4 Upon expiry of the above payment period, the Buyer shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to claim further damages for delay. In relation to merchants, our claim to the commercial due date interest (§ 353 HGB) shall remain unaffected.

4.5 The Buyer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected, in particular pursuant to Clause 6 para. 6 sentence 2 of these GTC.

4.6 If, after conclusion of the contract, it becomes apparent (e.g. by filing an application to open insolvency proceedings) that our claim to the purchase price is jeopardised by the Buyer’s lack of ability to pay, we shall be entitled, in accordance with the statutory provisions, to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

In the event of unforeseeable cost changes, in particular due to changes in material prices, wage, salary or energy costs occurring after conclusion of the contract, Excelsior reserves the right to increase prices in line with the increased costs if delivery takes place later than four (4) months after conclusion of the contract. These cost changes shall be proven to the customer upon request.

5. Retention of Title
5.1 We retain title to the sold goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

5.2 The goods subject to retention of title may not be pledged to third parties or transferred as security before full payment of the secured claims. The Buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) access the goods belonging to us.

5.3 In the event of contractual breach by the Buyer, in particular in the event of non-payment of the due purchase price, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time constitute a declaration of withdrawal; rather, we are entitled to demand only the return of the goods and to reserve the right of withdrawal. If the Buyer does not pay the due purchase price, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if such a deadline is dispensable under the statutory provisions.

5.4 The Buyer is authorised, until revocation pursuant to 5.4 c) below, to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition. The retention of title shall extend to the products resulting from the processing, mixing or combination of our goods at their full value, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in the event of processing, mixing or combination with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title. Excelsior reserves all ownership and copyright rights to any illustrations, drawings, calculations and other documents and information of a tangible and intangible nature, including in electronic form. These items must be returned to Excelsior immediately upon request and any existing copies (including electronic) must be destroyed as soon as and to the extent that they are no longer required in the ordinary course of business. This also applies to such written documents that are marked as “confidential”. Before passing them on to third parties, the customer requires the express written consent of Excelsior.

1. a) The Buyer hereby assigns to us by way of security all claims arising from the resale of the goods or the product, in full or in the amount of our possible co-ownership share pursuant to the above paragraph. We accept the assignment. The obligations of the Buyer set out in para. 2 shall also apply with regard to the assigned claims.
2. b) The Buyer remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, there is no lack of his ability to pay and we do not assert the retention of title by exercising a right pursuant to para. 3. However, if this is the case, we may demand that the Buyer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In addition, we are entitled in this case to revoke the Buyer’s authorisation to further resell and process the goods subject to retention of title.
3. c) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities at the Buyer’s request at our discretion.

1. Defect Claims of the Buyer 6.1 The Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions) shall be governed by the statutory provisions, unless otherwise provided below.

6.2 The basis of our liability for defects is primarily the agreement made regarding the quality and the intended use of the goods (including accessories and instructions). All product descriptions and manufacturer’s specifications that are the subject of the individual contract or were publicly announced by us (in particular in catalogues or on our website) at the time of conclusion of the contract shall be deemed quality agreements in this sense. If the quality has not been agreed, it shall be assessed in accordance with the statutory regulation whether a defect exists or not (§ 434 para. 3 BGB).

6.3 We shall not be liable for defects of which the Buyer was aware at the time of conclusion of the contract or of which he was grossly negligently unaware (§ 442 BGB). Furthermore, the Buyer’s claims for defects presuppose that he has fulfilled his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, during inspection or at any later point in time, we must be notified of this immediately in writing. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects not recognisable during inspection within the same period of discovery. If the Buyer fails to carry out the proper inspection and/or notification of defects, our liability for the defect that was not or not timely or not properly reported shall be excluded in accordance with the statutory provisions. In the case of goods intended for installation, attachment or fitting, this shall also apply if the defect only became apparent after the corresponding processing due to the breach of one of these obligations; in this case, in particular, the Buyer shall have no claims for reimbursement of corresponding costs (“removal and installation costs”).

6.4 If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.

6.5 We are entitled to make the subsequent performance owed conditional on the Buyer paying the due purchase price. However, the Buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.

6.6 The Buyer must give us the time and opportunity required for the subsequent performance owed, in particular by handing over the defective goods for inspection purposes. In the case of replacement delivery, the Buyer must return the defective item to us upon our request in accordance with the statutory provisions; however, the Buyer has no claim for return. Subsequent performance does not include the removal, dismantling or uninstallation of the defective item nor the installation, attachment or fitting of a defect-free item if we were not originally obliged to provide these services; claims of the Buyer for reimbursement of corresponding costs (“removal and installation costs”) shall remain unaffected.

6.7 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs as well as any removal and installation costs, in accordance with the statutory provisions and these GTC if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer for the costs arising from the unjustified request for defect rectification if the Buyer knew or should have been able to recognise that there was actually no defect. Exclusively within Europe! The customer must give Excelsior or commissioned third parties the opportunity to inspect complaints and other objections, in particular to provide access to the products and to enable appropriate measures for problem analysis. For this purpose, the customer shall grant Excelsior the necessary time and provide support. Upon request of Excelsior, a complained-about product must be returned to Excelsior carriage paid. In the event of a justified complaint of defects, Excelsior shall reimburse the costs of the most favourable shipping route; this does not apply insofar as the costs increase because the product is located at a place other than the place of intended use.

No warranty rights exist in cases where disruptions or defects are attributable to causes that lie solely within the customer’s sphere of responsibility. This includes in particular the following cases (list not exhaustive): (a) Incorrect, incomplete or unsuitable specifications by the customer regarding the quality of the product; (b) Unsuitable or improper use of the product; (c) Normal wear and tear of the product and its wearing parts; (d) Improper maintenance and/or treatment of the product in accordance with Excelsior’s instructions; (e) Physical, chemical, electrochemical and/or electrical influences not attributable to Excelsior on the transport route or in the area of the location chosen by the customer; (f) Changes to the product not approved by Excelsior by the customer or by third parties commissioned by the customer.

6.8 In urgent cases, e.g. where operational safety is endangered or to avert disproportionate damage, the Buyer shall have the right to remedy the defect himself and to demand reimbursement from us of the objectively necessary expenses incurred for this purpose. We must be notified immediately of such self-performance, if possible in advance. The right of self-performance does not exist if we would be entitled to refuse corresponding subsequent performance under the statutory provisions.

6.9 If a reasonable period to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. However, in the case of an insignificant defect there is no right of withdrawal.

6.10 Claims of the Buyer for reimbursement of expenses pursuant to § 445a para. 1 BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 para. 5, 327u BGB). Claims of the Buyer for damages or reimbursement of futile expenses (§ 284 BGB) in the event of defects in the goods shall only exist in accordance with the following Clauses 7 and 8.

Other Liability
7.1 Unless otherwise provided in these GTC including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.

7.2 We shall be liable for damages – regardless of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in one’s own affairs; insignificant breach of duty), a) for damages arising from injury to life, body or health, provided that no impact of a projectile with higher energy/speed or harder head than the prescribed resistance level has occurred b) for damages arising from the breach of a material contractual obligation (obligation the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

7.3 The limitations of liability resulting from para. 2 shall also apply to third parties and in the event of breaches of duty by persons (including for their benefit) whose fault we are responsible for according to statutory provisions. They shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for the Buyer’s claims under the Product Liability Act.

7.4 In the event of a breach of duty that does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination by the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

Industrial property rights of third parties: If products are manufactured by Excelsior based on customer specifications or existing products are adapted, the customer shall be liable for ensuring that no industrial property rights, copyrights or other third-party rights conflict with this and that the manufacture and use of the products does not infringe third-party intellectual property and does not violate any statutory or official prohibitions.

7.5 The customer shall indemnify Excelsior against all third-party claims in this respect, including the necessary expenses arising from or in connection with such claims.

8. Limitation Period
8.1 Notwithstanding § 438 para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall begin with acceptance.

8.2 If the goods are a building or a thing that has been used in accordance with its usual manner of use for a building and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 No. 2 BGB). Further statutory special regulations on limitation (in particular § 438 para. 1 No. 1, para. 3, §§ 444, 445b BGB) shall also remain unaffected.

8.3 The above limitation periods of sales law shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect in the goods, unless the application of the regular statutory limitation (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the Buyer pursuant to Clause 7 para. 2 sentence 1 and sentence 2 (a) as well as under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods. This period shall not apply to claims for damages due to injury to life, body or health, due to the assumption of guarantees or due to intentional or grossly negligent breaches of duty as well as to claims for damages under the Product Liability Act; these claims shall become time-barred in accordance with the statutory limitation provisions.

9. Confidentiality Insofar as no separate confidentiality agreements have been concluded by the parties, the following shall apply:

9.1 The parties undertake to treat all confidential information which they receive directly or indirectly from the respective other party as confidential. Offers and all related commercial and technical details shall also be treated as confidential information. In particular, all illustrations, drawings, calculations, quality guidelines, samples and similar items received must be kept secret. Duplication and disclosure of confidential information is only permitted within the scope of operational requirements. They may only be disclosed to third parties with prior written consent.

9.2 The above obligations shall not apply to such confidential information for which the receiving party can prove that it (a) was already generally accessible at the time of notification or subsequently became generally accessible without its fault; (b) was already in its possession at the time of notification; (c) was made accessible to it by a third party without any obligation to maintain confidentiality and non-use, provided that these third parties did not receive the information directly or indirectly from the other party; (d) must be reported to authorities under statutory provisions.

9.3 The confidentiality obligation shall continue for a period of 5 years after the end of the business relationship. Upon termination of the business relationship, the customer undertakes to return to Excelsior all confidential information received, insofar as it is embodied or stored on electronic media. The customer shall confirm to Excelsior in writing, upon Excelsior’s request, that the obligations arising from the last two sentences have been fulfilled.

10. Data Protection
10.1 The parties shall comply with the data protection laws applicable to them respectively.
10.2 If and to the extent that Excelsior processes personal data of the customer in the course of providing the service, the parties shall conclude a standard data processing agreement in accordance with Art. 28 of the General Data Protection Regulation (GDPR) prior to the start of processing.

11. Sanctions, Embargoes Without prejudice to other rights, Excelsior shall be entitled to withdraw from contracts if the performance of the contracts is opposed by state and/or international foreign trade regulations such as embargoes and sanctions.

11.1 The customer shall ensure that it conducts its business, whether domestic, foreign or international, in compliance with all applicable laws and regulations (together the “Laws”). This applies in particular to all laws relating to (i) bribery and corruption, (ii) export and import of products including customs and foreign trade law, (iii) antitrust and competition law, (iv) taxes, (v) labour and employment, (vi) health and safety, and (vii) environmental protection.

11.2 The customer shall further ensure that its employees and other representatives have sufficient knowledge of the Laws, inter alia through an appropriate and effective internal compliance programme and regular training, and that it takes and will take all necessary steps to ensure that its employees and representatives comply with the Laws in the course of their business-related activities.

11.3 Excelsior reserves the right to verify in an appropriate manner whether the customer complies with the requirements of this Clause 11. The customer undertakes to allow such verification or a related audit in its area upon Excelsior’s request and to provide every reasonable assistance, including access to the customer’s documents which, in Excelsior’s reasonable assessment, are necessary for the verification.

11.4 The customer undertakes to notify Excelsior immediately in writing of any circumstances indicating that a violation of laws has occurred or may have occurred in connection with the customer’s business.

11.5 Excelsior shall be entitled to withdraw from contracts with the customer if there is reason to believe that the customer does not meet the requirements of this Clause 11 in a material respect. However, the right of withdrawal shall only exist if the customer has not remedied the respective reason for withdrawal within four weeks of receipt of a written request from Excelsior or cannot prove that it has been remedied. In the case of continuing obligations, there shall be a corresponding right to terminate for good cause without observing a notice period.

12. Choice of Law and Place of Jurisdiction
12.1 These GTC and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The contract language is exclusively German. If a translation of these terms and conditions of sale and delivery is provided to the customer, the foreign-language version shall serve only for better understanding; only the German version shall be authoritative for the content of the contract.

12.2 If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Osnabrück. The same applies if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation pursuant to these GTC or a prior individual agreement or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, in particular on exclusive jurisdictions, shall remain unaffected.