General Terms and Conditions for Sales of frogblue AG

§ 1 Scope of application, form

1. These General Terms and Conditions for Sales (ST&Cs) shall apply to all business relationships of frogblue AG, Luxemburgerstraße 6, 67657 Kaiserslautern, Germany ( “frogblue”, “we” or “us”) with frogblue’s customers (“Purchaser”). The ST&Cs shall only apply if the Purchaser is an entrepreneur (section 14 German Civil Code (Bürgerliches Gesetzbuch)), a legal entity under public law or a special fund under public law.
2. The ST&Cs shall apply in particular to contracts for the sale and/or delivery of movables (“Goods”) irrespective as to whether frogblue produces the Goods itself or purchases them from suppliers (sections 433, 651 German Civil Code). Unless otherwise agreed, these ST&Cs in the version which is in force at the time of the Purchaser’s order and in any case in the version last provided to the Purchaser in text form, respectively shall apply as a framework agreement also to similar future contracts without frogblue having to refer to them again in each individual case. 
3. These ST&Cs also apply to contracts concluded online, i.e., via frogblue's Web-Shop (“Web-Shop).
4. The ST&Cs of frogblue shall apply exclusively. Any deviating, contrary or supplementary General Terms and Conditions of the Purchaser shall form part of the contract only if frogblue has explicitly agreed to their applicability. This consent requirement shall apply in any case, including, for example, if frogblue, having knowledge of the Purchaser’s T&Cs, performs delivery to the Purchaser without any reservations.
5. Individual agreements made with the Purchaser in the individual case (including side agreements, supplements, and amendments) shall in each case prevail over these ST&Cs. Subject to proof of the contrary, a written contract and written confirmation, respectively of frogblue shall be decisive for the content of such agreements.
6. Legally relevant declarations and notices by the Purchaser with respect to the contract (for example, setting of deadlines, notification of defect, rescission, or reduction) require written or text form (for example, mail, e-mail, fax). Any statutory requirement as to form and any further evidence, in particular in case of doubt about the authorisation of the declaring party shall remain unaffected.
7. Any references to the application of statutory provisions are for the purpose of clarification only. Also without such clarification, the statutory provisions shall thus apply, unless they are directly amended or explicitly excluded by these ST&Cs.

§ 2 Conclusion of contract

1. Frogblue’s offers are subject to change and not binding. The presentation of the Goods in the Web-Shop constitutes no legally binding offer, but is only a non-binding online catalogue. This shall also apply if frogblue has provided to the Purchaser catalogues, technical documentation (for example, drawings, plans, calculations, references to DIN norms), other product specifications or documents – also in electronic form – to which frogblue has reserved rights of title and copyrights.
2. Any order of Goods by the Purchaser shall be deemed a binding contract offer. 
3. When ordering via the Web-Shop, the Purchaser can at first non-bindingly put the chosen Goods into the shopping cart. The Purchaser can switch to the “Shopping cart” by means of the appropriate button on the navigation bar and make changes there at any time. By using the correction aids intended for this purpose and explained in the ordering process, the Purchaser can correct its entries at any time before sending its binding order. At the end of the ordering process the Purchaser submits its binding order for the Goods in the shopping cart by clicking the button “Buy”.
4. In case of orders submitted via the Web-Shop or by e-mail frogblue confirms the receipt of the Purchaser's order via e-mail (order receipt confirmation). This order confirmation constitutes no acceptance of the Purchaser's offer, but should only inform the Purchaser that the order has been received.
5. Unless otherwise stated in the order, frogblue shall be entitled to accept this contract offer within two (2) weeks as from its receipt.
6. Acceptance may be declared either in writing or in text form (for example, by order confirmation), or by delivery of the Goods to the Purchaser.
7. frogblue points out that it does not store the text of the contract after the conclusion of the contract and that the contract text is no longer available for the Purchaser after the conclusion of the contract.

§ 3 Delivery period and delay in delivery

1. The delivery period shall be individually agreed upon or stated by frogblue when accepting the order.
2. If frogblue is unable to meet binding delivery periods for reasons for which frogblue is not responsible (non-availability of Goods), frogblue shall notify the Purchaser thereof without undue delay and, at the same time, inform the Purchaser of the expected new delivery period. If the Goods are not available also within the new delivery period, frogblue shall be entitled to rescind the contract in whole or in part. Any consideration already paid by the Purchaser shall be reimbursed by frogblue without undue delay. Non-availability of Goods within this meaning shall be deemed to have occurred in particular in case of a late delivery to frogblue by the supplier, if frogblue has entered into a matching transaction, neither frogblue nor its supplier is at fault or frogblue is not obliged to provide sourcing in the individual case.
3. Whether a delay in delivery by frogblue has occurred shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Purchaser shall be required.
4. The Purchaser’s rights pursuant to section 8 of these ST&Cs and frogblue’s statutory rights, in particular in case of an exclusion of the obligation to perform (for example, due to the impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.

§ 4 Delivery, passing of risk, acceptance, delay in acceptance

1. Delivery shall be ex warehouse, which shall also be the place of performance for delivery and subsequent performance, if any. At the Purchaser’s request and expense the Goods shall be shipped to another place of destination (sales shipment). Unless otherwise agreed, frogblue shall be entitled to determine the type of shipment (in particular transportation company, shipping route, packaging).
2. In case of sales shipment the risk of accidental loss or accidental deterioration of the Goods as well as the risk of delay shall already pass when the Goods are delivered to the forwarding agent, carrier, or another person or institution instructed to carry out the shipment. If acceptance has been agreed, this shall be relevant for the passing of risk. Also in any other respect, the statutory provisions on contracts for work and services shall apply to any acceptance agreed upon accordingly. The handover and acceptance shall be deemed to have taken place if the Purchaser is in default of acceptance. 
3. If the Purchaser is in default of acceptance or fails to cooperate or if our delivery is delayed for other reasons for which the Purchaser is responsible, frogblue shall be entitled to request compensation for any damage arising in connection therewith, including additional expenses (for example, storage costs). For this, frogblue shall charge a flat compensation of 0,5% per completed week of delay, max. 5% of the net amount of the Goodscommencing with the delivery period or - if a delivery period has not been agreed upon - with the notification that the Goods are ready for shipment.
4. Proof that a higher damage has been suffered and any statutory claims of frogblue (in particular for compensation of additional expenses, reasonable indemnification, and termination) shall remain unaffected. However, the flat amount shall be offset against any further monetary claims. The Purchaser shall have the right to furnish evidence that frogblue has suffered no damage at all or has suffered a damage which is considerably less than the aforementioned flat amount.

§ 5 Prices and payment conditions

1. Unless otherwise agreed in the individual case, frogblue’s prices which are applicable at the time of conclusion of contract shall apply ex works plus any statutory VAT. 
2. In case of the sales shipment (section 4 (1)) the Purchaser shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Purchaser. Any customs, fees, tax, and other public charges shall also be borne by the Purchaser.
3. The purchase price shall be due and payable within 14 days after invoicing and delivery and acceptance, respectively of the Goods. However, frogblue shall, also within the scope of an ongoing business relationship, be entitled at any time to carry out any delivery in whole or in part against prepayment only. frogblue declares a corresponding condition upon order confirmation at the latest.
4. When the aforementioned time for payment expires, the Purchaser shall be in default. During the time of default, interest at the then applicable statutory default interest rate shall be paid on the purchase price. frogblue reserves the right to claim any further damage caused by default. frogblue’s right to claim from businessmen interest from the due date (section 353 German Commercial Code (Handelsgesetzbuch)) shall remain unaffected.
5. The Purchaser shall be entitled to set-off rights or retention rights only if its claim has been determined by a court with legally binding effect or is undisputed. In case of any defect in the Goods, the Purchaser’s counter-claims, in particular those pursuant to section 7 (6) sentence 2 of these ST&Cs shall remain unaffected.
6. If, after conclusion of the contract, it becomes evident (for example, if institution of insolvency proceedings has been applied for) that frogblue’s right to receive the purchase price is at risk as the Purchaser is unable to make payment, frogblue shall be entitled to refuse performance and - if applicable, after setting a deadline – to rescind the contract in accordance with the statutory provisions (section 321 German Civil Code). In case of contracts for the manufacture of non-fungible goods (manufacture to specification), frogblue has the right to declare rescission immediately. The statutory provisions governing the dispensability of setting a deadline shall remain unaffected.  

§ 6 Reservation of title

1. frogblue shall reserve title to any Goods sold until full payment of all of frogblue’s present and future claims arising from the purchase contract and an ongoing business relationship has been made (secured claims).
2. Goods which are subject to the reservation of title may neither be pledged to third parties, nor assigned as security before full payment of the secured claims has been made. The Purchaser shall notify frogblue without undue delay if institution of insolvency proceedings has been applied for or Goods owned by frogblue are seized by third parties (for example, by seizures).
3. In the event that the Purchaser breaches the contract, in particular, if the Purchaser does not make payment of the due purchase price, frogblue shall, in accordance with the statutory provisions, be entitled to rescind the contract or/and demand that the Goods be returned on the basis of the reservation of title. A demand for return shall not automatically include a declaration of rescission. Rather, frogblue shall be entitled to only claim return of the Goods and reserve the right of rescission. If the Purchaser fails to make payment of the due purchase price, frogblue may assert such claims only if frogblue has first unsuccessfully set the Purchaser a reasonable deadline for payment or if such setting of a deadline is not necessary according to the statutory provisions.
4. Until a revocation pursuant to section 6 (4) (c) below is made, the Purchaser shall be entitled to resell and/or process the Goods which are subject to the reservation of title in the due course of business. In this case, the following provisions shall apply additionally.

1. Reservation of title extends to the full value of any Goods arising from the processing, mixing, or combination of our Goods with frogblue being deemed the manufacturer. If, in case of processing, mixing, or combination with goods of third parties, those third parties reserve title to the goods, frogblue shall acquire joint title in proportion to the invoice values of the processed, mixed, or combined goods. In any other respect, the same shall apply to the resulting product as to Goods delivered subject to the reservation of title.
2. The Purchaser already now assigns to frogblue any claims against third parties arising from the resale of the Goods or the product as security in total or in the amount of any joint title portion of frogblue in accordance with the section 6 (4) (a)above. frogblue shall accept such assignment. The Purchaser’s obligations set forth in section 6 (2) shall also apply with regard to the claims assigned.
3. Alongside frogblue, the Purchaser shall remain authorised to collect the claim. frogblue undertakes to not collect the claim as long as the Purchaser meets its payment obligations towards us, the Purchaser is not unable to perform and frogblue does not claim reservation of title by exercising a right in accordance with section 6 (3). Should this be the case, however, frogblue may request that the Purchaser disclose to frogblue the assigned claims and the respective debtors, provide all information necessary for collection, hand over the respective documents and inform the debtors (third parties) about the assignment. Moreover, in this case, frogblue shall be entitled to revoke the Purchaser’s right to resell and process the Goods which are subject to the reservation of title.
4. If the realisable value of the collateral exceeds frogblue’s claims by more than 10 percent, frogblue shall, upon the Purchaser’s request, release collateral at frogblue’s choice.

§ 7 Purchaser’s claims for defects

1. Unless otherwise provided below, the Purchaser's rights in case of defects in quality and title (including false and incomplete delivery as well as improper assembly or faulty assembly instructions) shall be governed by the statutory provisions. In all cases, the special statutory provisions on final deliveries of unprocessed Goods to a consumer shall remain unaffected (recourse against supplier pursuant to section 478 German Civil Code). Any claims for recourse against the supplier shall be excluded if the defective Goods have been processed by the Purchaser or another entrepreneur, for example, by incorporation into another product.
2. Any liability of frogblue for defects shall be primarily based on the agreement reached regarding the quality of the Goods. All product specifications which form part of an individual contract or have been published by frogblue (in particular in catalogues or on the website of frogblue) shall be deemed to be an agreement on the quality of the Goods.
3. If quality has not been agreed upon, the relevant statutory provision shall be applied to determine whether there is a defect or not (section 434 (1) sentence 2 and 3 German Civil Code). However, frogblue shall not assume any liability for any public statements made by the manufacturer or other third parties (for example, advertising statements).
4. The Purchaser's claims for defects are subject to the Purchaser fulfilling its statutory obligation to examine and object to defects (sections 377, 381 German Commercial Code). If a defect is identified upon delivery, inspection or at a later point in time, frogblue shall be notified thereof in writing without undue delay. In any case, notification of obvious defects shall be given within five business days as from delivery and notification of defects which were not identifiable upon inspection shall be given in the same period as from discovery. If the Purchaser fails to carry out a due inspection and/or notification of the defect, frogblue’s liability for the defect which was not reported or not reported in due time shall be excluded in accordance with the statutory provisions.
5. If the delivered item is defective frogblue may first choose whether frogblue will provide subsequent performance by remedying the defect (cure) or by delivering a faultless item (substitute delivery). frogblue’s right to refuse subsequent performance subject to the statutory requirements shall remain unaffected.
6. frogblue shall be entitled to make any subsequent performance owed dependent on the Purchaser paying the due purchase price. However, the Purchaser shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
7. The Purchaser shall give frogblue the time and opportunity which is required for subsequent performance, in particular hand over the allegedly defective Goods for examination purposes by indicating the return number notified by frogblue in advance. In case of substitute delivery, the Purchaser shall return to us the defective item in accordance with the statutory provisions. Subsequent performance shall not include disassembly of the defective item or re-installation, provided frogblue was originally not obliged to carry out installation.
8. Any expenses necessarily incurred in connection with examination and subsequent performance, in particular transport, travel, labour, and material costs and, if applicable, disassembly and installation costs shall be borne or reimbursed by frogblue in accordance with the statutory provision, provided a defect actually exists. Otherwise, frogblue may demand that the Purchaser reimburse it for any costs incurred in connection with the unjustified request to remedy the defect (in particular examination and transport costs), unless the absence of the defect was not recognisable to the Purchaser.
9. If subsequent performance has failed or a reasonable period set by the Purchaser for subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Purchaser may rescind the purchase contract or reduce the purchase price. In case of a minor defect, however, there shall be no right of rescission.
10. Claims of the Purchaser for damages or reimbursement of futile expenses shall, also in case of defects, only exist in accordance with section 8 and shall otherwise be excluded.

§ 8 Other liability

1. Unless otherwise stated in these ST&Cs, including in the following provisions, frogblue shall be liable for any breach of contractual and non‐contractual obligations in accordance with the statutory provisions. 
2. frogblue shall be liable for damages – irrespective of the legal ground thereof – only in case of intent and gross negligence. In case of ordinary negligence, frogblue shall, subject to a more lenient standard of liability in accordance with the statutory provisions (for example, for care exercised in own affairs), be liable only

1. for damage arising from an injury to life, limb, or health;
2. for damage arising from a breach of an essential contractual obligation (obligation which has to be fulfilled for the due performance of the contract in the first place and compliance with which the contractual partner does and may generally rely on); in this case, however, frogblue’s liability shall be limited to compensation of the foreseeable and customary damage.
3. The limitations of liability set out in section 8 (2) shall also apply to any breach of duty by or in favour of persons whose fault is attributable to us in accordance with the statutory provisions. They shall not apply to the extent frogblue has fraudulently concealed a defect or has given a guarantee as to the quality of the Goods and to claims asserted by the Purchaser under the German Product Liability Act (Produkthaftungsgesetz).
4. In the event of a breach of duty that does not consist of a defect, the Purchaser may rescind or terminate the contract only if frogblue is responsible for the breach of duty. A free right of termination of the Purchaser (in particular pursuant to sections 650, 648 German Civil Code) shall be excluded. In any other respect, the statutory provisions and legal consequences shall apply.

§ 9 Guarantee

1. In addition to the statutory warranty rights, we grant the end customers, who are consumers as defined by § 13 BGB ("End Customers"), a four (4) year guarantee on our control modules "Frogs" ("Frogs") from the date of delivery of the Frogs to the End Customer - provided that they are handled and installed properly. The guarantee to the End Customers only applies to the construction defects on the newly sold Frogs which exclude or not only insignificantly reduce the use of Frogs for the use expected under the contract or for ordinary use. Alterations due to normal, natural wear and tear are excluded from the guarantee. Also excluded from the guarantee to the End Customers are all other Goods, such as Cubes or accessories. The Purchaser undertakes to pass on the warranty provisions pursuant to § 9 to the End Customers by contract. The Purchaser undertakes to inform frogblue immediately of any warranty claim made by the End Customer.

§ 10 Choice of law and place of jurisdiction

1. These ST&Cs and the contractual relationship between us and the Purchaser shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
2. If the Purchaser is a businessman within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive ‐ also international ‐ place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship shall be our registered place of business in Munich. The same applies if the Purchaser is an entrepreneur within the meaning of section 14 German Civil Code. However, frogblue shall in all cases also be entitled to bring legal action at the place of performance of the delivery obligation in accordance with these ST&Cs or a prevailing individual agreement or at the general place of jurisdiction of the Purchaser. Any prevailing statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
3. The German version of these ST&Cs shall be legally binding, while the English version is a convenience translation only.