GTC

General Terms and Conditions (GTC)

of artec Sportgeräte GmbH

I Preliminary remark

1. Scope of application
   1. All offers, sales contracts and deliveries by our customers (hereinafter “customers”) are subject to these General Terms and Conditions (GTC).
   2. The aforementioned under item (1.1) does not apply to offers, sales contracts and deliveries based on orders placed via our Online Shop at shop.artec-sportgeraete.de. These are covered by our General Terms and Conditions of Sale and Delivery for Internet Sales.
2. Clientele
   1. The range of our products equally addresses consumers as well as entrepreneurs.
   2. For the purpose of these GTC (i) a “consumer” is any natural person, who enters into a legal transaction for purposes which can be attributed in the main neither to commercial nor independent professional activities (§ 13 BGB (German Civil Code)) and (ii) an “entrepreneur” is any natural or legal person or a private company with legal capacity which enters into a legal transaction in the exercise of their commercial or independent professional activities (§ 14 BGB).
3. Structure
   1. In the following section “II. General Conditions”, those conditions are listed which especially apply to the consumer. They also apply to the entrepreneurs unless it is explicitly pointed out that their scope of application is limited to the consumer.
   2. In section “III. Special Conditions” further conditions are listed which solely apply to entrepreneurs.

II General conditions

1. Contract language
   The language available for the conclusion of the contract is German.

2. Contractual partner
   The contract of sale is concluded with artec Sportgeräte GmbH.

3. Ordering process/conclusion of contract
   1. Offers and price quotations contained in brochures, advertisements and other advertising material are subject to change and non-binding.
   2. If the customer submits an order to us, this constitutes a binding offer to conclude a contract within the meaning of §145 BGB.
      
      The customer is bound to his declaration for 14 calendar days from the date of submission or, in the case of an order in text form (e.g. post/fax/e-mail), from the date of dispatch.
      
      We are entitled to accept the offer within this period.
      
      The date on which our acceptance is received by the customer is decisive for compliance with the deadline. The dispatch of the ordered goods shall also be deemed as acceptance.
   3. As an alternative to the customer’s direct order, we will also gladly submit a binding offer to the customer in written form (in accordance with §145 BGB).
      
      We are bound to this offer for 28 calendar days from the date of dispatch.
      
      The customer is entitled to accept our offer within this period. The date on which we receive the acceptance is decisive for compliance with the deadline.

4. Right of withdrawal for consumers
   1. Each customer, who is a consumer, has the legal right of withdrawal.
      Details can be taken form the withdrawal instructions under the link “Withdrawal Instructions”.
   2. The aforementioned under item (4.1) does not apply to consumers who conclude a contract with us in our business premises (Elf Stücken 33, 49324 Melle, Germany) or submit a corresponding offer to us. There is no right of withdrawal for these.
5. Return shipping costs in case of withdrawal
   It is agreed that, in case that the customer is consumer and revokes the contract in the context of his legal right of withdrawal, he has to bear the direct costs for the return shipment of the goods.

6. Supplier identification, address for service

Our contact details for claims and other declarations of intent as well as our complete address are:

artec Sportgeräte GmbH

represented by the managing directors Dirk Beinkämpen and Frank Tellmann

Elf Stücken 33

49324 Melle

Tel.: +49 (0) 5422 94700

Fax.: +49 (0) 5422 947070

Email: info@artec-sportgeraete.de

Registry Court: District Court Osnabrueck

Company Registration Number: HRB 17567

VAT no.: DE162589764

7. Prices and payment
   1. Our prices include the statutory VAT
   2. Unless expressly agreed otherwise, our prices apply to collection from our business premises, including packaging.
   3. Payments can only be made at our business premises or by transfer to a bank account specified by us. Technical staff, drivers and service employees in the field are not authorized to collect payments.
   4. If you choose the payment method „bank transfer“, there are no additional costs except for any bank transfer fees.

In our business premises you can pay in cash.

(8) Delivery and delivery time

1. Unless a fixed deadline or a fixed date has been expressly agreed, our deliveries an services must be made within a period of 12 working days. The period begins on the day of receipt of the full purchase price (including VAT and any shipping costs).
2. Should we fail to meet an agreed delivery date, the purchaser shall set us a reasonable period of grace, which may not be less than one week.
3. In the event of non-availability of the ordered goods for which we are not responsible as a result of untimely or incorrect delivery (including delivery of short quantities) by our (upstream) supplier despite a delivery contract concluded by us with the (upstream) supplier for the ordered goods, we reserve the right not to deliver. In this case, we undertake to inform the customer immediately about the non-availability of the ordered goods and to refund any consideration (payments) already received from the customer without delay.
4. To a reasonable extent for the customer, we are entitled to make partial deliveries. The customer shall not incur additional shipping costs as a result of partial deliveries.

(9) Shipping

1. The delivery of the goods takes place in our business premises.
2. We only ship the goods if this has been expressly agreed in the individual case.
3. Unless otherwise expressly agreed, we shall determine the appropriate mode of shipment and the transport company at our reasonable discretion. Delivery is made only at ground level and only to the first door to the address specified by the customer.

(10) Rights in case of material defects

If the customer is a consumer, he shall be entitled to the statutory warranty claims for all goods sold by us in the event of a material defect.

(11) Retention of ownership

The delivered goods remain to be our property until complete payment.

(12) Data protection

We collect and store the data of the customer necessary for the business transaction. When processing the customer’s personal data, we comply with the statutory provisions. Further details can be found in our “Privacy Statement”.

(13) Transmission of contract provisions

We provide the customer, who is a consumer, with the contract provisions including these GTC in text form at the latest upon delivery of the goods.

(14) Further regulations, settlement of disputes

1. If one or more regulations of these Terms & Conditions become invalid the validity of the remaining regulations shall not be affected. The provision rendered invalid shall be replaced by the legally valid regulation.
2. German law applies, to the exclusion of the UN purchasing law (CISG). This choice of law applies only insofar as the consumer protection granted by compulsory regulations of the state in which the consumer has his habitual residence at the time of placing the order are not withdrawn.
3. The European Commission provides a platform for online dispute resolution (OS), which you can find under the following link: http://ec.europa.eu/consumers/odr/.
   We are not obliged or willing to participate in a dispute resolution procedure before a consumer arbitration board.

III Special conditions

(1) Future business, customer GTCs

1. These General Terms and Conditions shall also apply to future transactions with customers who are entrepreneurs, even if we do not refer to them again separately in the future.
2. The customer’s terms and conditions shall not apply, even if we do not separately object to their application in individual cases.

(2) Offer and contract conclusion
What is said under II. (3) about the offer and the conclusion of the contract also applies to business customers, but with the following conditions:

1. The legal relationship between us and the customer shall be governed solely by the written purchase contract, including these GTC. This fully reflects all agreements between the contracting parties regarding the subject matter of contract.
   Verbal promises made by artec prior to the conclusion of the contract are not legally binding and verbal agreements between the contracting parties shall be replaced by the written contract, unless it is expressly stated in each case that they shall continue to be binding.

Information provided by artec on the subject of the delivery/service (e.g. weights, dimensions, usable values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximate, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identification on the delivery/service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements as well as the replacement of components by equivalent parts are permissible insofar as they do not impair the usability for the contractually intended purpose.

artec reserves the ownership/copyright of all quotations and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. The customer may not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties, or reproduce them without the express consent of artec. At the request of artec, the customer must return these items to artec in their entirety and destroy any copies that may have been made if they are no longer required by the customer in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The storage of electronically provided data for the purpose of customary data backup is excluded from this.

(3) Prices and payment

What has been said under II. (7) regarding prices and payments shall also apply to business customers, however, with the following conditions/modifications:

1. In deviation from II. (7.1), net prices shall be stated in invitations to tender and written offers, which shall be exclusive of statutory value-added tax.
2. If the agreed prices are based on artec’s list prices and the delivery is to be made more than four months after conclusion of the contract, artec’s list prices valid at the time of delivery shall apply.
3. In addition to the payment options mentioned in II. (7), business customers may also pay by invoice. Invoice amounts are to be paid within thirty days without any deductions, unless otherwise expressly agreed. The date of payment is determined by the date of receipt. Payment by cheque is excluded, unless it is agreed separately in individual cases. If the customer fails to perform on due date, interest shall be charged on the outstanding amounts from the due date at a rate of 9 percentage points above the prime rate; the right to claim higher interest and further damages in the event of default shall remain unaffected.
4. Setting off against counterclaims of the customer or the retention of payments due to such claims is only permissible insofar as the counterclaims are undisputed or have been legally established.
5. artec shall be entitled to execute or provide outstanding deliveries or services only against advance payment or the provision of security if, after the conclusion of the contract, it becomes aware of circumstances that are likely to substantially reduce the customer’s creditworthiness and as a result of which the payment of artec’s outstanding receivables by the customer from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is endangered.

(4) Delivery and delivery time
In deviation from II. (8) the following shall apply to business customers with regard to delivery and delivery time:

1. Deadlines and dates for deliveries and services offered by artec are always only approximate, unless a fixed deadline or fixed date has been expressly promised or agreed upon. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
2. artec may – without prejudice to its rights arising from default of the customer – demand from the customer an extension of delivery and service deadlines or a postponement of delivery and service deadlines for the period in which the customer fails to fulfil its contractual obligations towards artec.
3. artec is not liable for impossibility of delivery or for delays in delivery insofar as these are due to force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in procuring necessary official permits, administrative measures or the failure of suppliers to deliver or to deliver correctly or on time) for which artec is not responsible. If such events make it significantly more difficult or impossible for artec to provide the delivery or service and the hindrance is not only of temporary duration, artec is entitled to withdraw from the contract. In the case of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus an appropriate start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to artec.
4. We are entitled to make partial deliveries to a reasonable extent for the customer. The customer shall not incur additional shipping costs due to partial deliveries.
5. If artec is in default with a delivery or service or if it is unable to deliver or service for whatever reason, artec’s liability for damages shall be limited in accordance with III. (6).

(5) Place of performance, shipment, packaging, transfer of risk, acceptance
For business customers, the following shall apply in deviation from II. (9) for shipping as well as (additionally) for place of performance, packaging, transfer of risk and acceptance:

1. The place of performance for all obligations arising from the contractual relationship is our business premises, unless otherwise specified. If artec is also responsible for the assembly/installation, the place of performance is the place where the installation has to take place.
2. We only ship the goods if this has been expressly agreed in the individual case.
3. Shipping method and packaging are subject to our dutiful discretion. In addition, delivery will only be made at ground level and to the first door at the address specified by the customer.
4. The risk passes to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if artec has assumed other services (e.g. shipment or assembly/installation). If the shipment or handover is delayed due to a circumstance caused by the customer, the risk shall pass to the customer on the day on which the delivery item is ready for shipment and artec has notified the customer of this.
5. Storage costs after transfer of risk shall be borne by the customer. In the case of storage by artec, the storage costs amount to 0.25 percent of the invoice amount of the delivery items to be stored per expired week. We reserve the right to assert and prove further or lower storage costs.
6. We will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.
7. Insofar as acceptance is to take place, the purchased item shall be deemed to have been accepted if:

• the delivery and, if artec is also responsible for the assembly/installation, the assembly/installation has been completed,
• artec has informed the customer of this with reference to the acceptance fiction in accordance with this III. (5g) and has requested the customer to accept the goods,
• twelve working days have elapsed since delivery or assembly/installation, or the customer has started to use of the purchased item (e.g. has put the delivered system into operation) and in this case six working days have elapsed since delivery or installation

and

• the customer has refrained from acceptance within this period for a reason other than a defect notified to us which makes the use of the purchased item impossible or significantly impairs it.

(6) Liability

In deviation from II. (10), the following shall apply with regard to the liability for business customers under the express application of § 377 HGB (German Commercial Code) for merchants:

1. We are also liable for damages to customers who are entrepreneurs in accordance with the statutory provisions without limitation, if they

• are based on injury to life, body or health and have been caused by an intentional or negligent breach of duty by us, our legal representatives or vicarious agents, or
• are based on an intentional or grossly negligent breach of duty by us, our legal representatives or vicarious agents, or
• are based on the Product Liability Act, or
• we have assumed a procurement risk or a guarantee and are therefore liable.

2. If a damage is only based on negligent, but not grossly negligent violation of an essential contractual obligation (cardinal obligation) by us, our legal representatives or vicarious agents, without there being a claim based on the above provisions under (1) to (4) at the same time, we shall also be liable for damages, but the amount shall be limited to the typically arising and foreseeable damage.

Material contractual obligations (cardinal obligations) in the aforementioned sense are those obligations on whose proper fulfilment the customer relies and may also rely because they characterize the contract.

3. In addition, we shall be liable to the extent that claims for damages are covered by liability insurance.
4. The statutory distribution of the burden of proof shall apply.
5. Any further claims for damages against us, our legal representatives or vicarious agents shall be excluded, irrespective of the legal grounds on which they are based.

(7) Limitation of claims for material defects

1. Rights and claims of customers who are entrepreneurs shall become statute-barred after one year, unless,
   1. the delivered goods are used for a building in accordance with their customary use and have caused the defectiveness thereof, or
   2. it is a matter of claims for reimbursement of expenses in accordance with § 479 BGB, or
   3. the defect is based on an intentional breach of duty by us, our legal representatives or vicarious agents, or
   4. it is a matter of claims for damages.

In these cases the statutory limitation periods shall apply.

2. The statutory provisions on suspension, suspension of expiry and recommencement of the limitation period shall apply.

(8) Retention of ownership

With respect to customers who are entrepreneurs, the following retention of title shall apply in deviation from the provision in II. (11):

1. We retain title to all goods delivered (reserved goods) until the purchase price has been paid in full and until all our claims arising from the business relationship have been paid.
2. The customer is entitled to further process and resell the goods in the ordinary course of business as long as he is not in default with the fulfilment of his obligations towards us or stops his payments. The following shall apply in detail:

• The processing or transformation of the reserved goods shall be carried out for us within the meaning of § 950 BGB without obligating us. By processing or transforming the reserved goods, the customer shall not acquire ownership of the new item pursuant to § 950 BGB. If the goods subject to retention of title are processed, mixed, blended or combined with other items, we shall acquire co-ownership of the new item in a share corresponding to the ratio of the invoice value of our goods subject to retention of title to the total value. The provisions applicable to the goods subject to retention of title shall apply mutatis mutandis to the co-ownership shares arising under the above provisions.
• The customer hereby assigns to us the claims arising from the resale or other sales transactions, such as contracts for work and services, together with all ancillary rights, and also on a pro rata basis to the extent that the goods have been processed, mixed or blended and we have acquired co-ownership thereof in the amount of our invoice value or the goods have been permanently installed. Insofar as the goods subject to retention of title are processed, mixed, blended or firmly installed, we shall be entitled from this assignment to a fraction of the respective claim from the resale corresponding to the ratio of the invoice value of our goods subject to retention of title to the invoice value of the item. If the reserved goods are sold by the customer together with other goods not supplied by us, the customer hereby assigns to us a share of the claim from the resale in the amount of the invoice value of our reserved goods.
• If the customer has sold this claim within the framework of genuine factoring, he hereby assigns to us the claim against the factor taking its place. If the customer places the claim from the resale in a current account relationship with his customer, he hereby assigns his claims from the current account relationship to us in the amount of the invoice value of the reserved goods.
• We hereby accept the above assignments. Until revoked by us, the customer shall be entitled to collect the claims assigned to him. The authorization to collect shall expire upon revocation, which shall occur if the customer is in default of payment or ceases payment. In this case, we are authorized by the customer to inform the buyers of the assignment and to collect the claim ourselves. Upon request, the customer shall be obligated to provide us with a precise list of the claims to which he is entitled, including the names and addresses of the purchasers, the amount of the individual claims, the invoice date, etc., and to provide us with all information and documents necessary for the assertion of the assigned claims and to permit the verification of such information.
• Amounts received by the customer from assigned claims shall be kept separately for us until they are transferred to us. Pledging or transfer by way of security of the reserved goods or the assigned claims shall not be permitted. We must be informed immediately of any pledges, stating the name of the pledgee.

3. If the value of the securities to which we are entitled exceeds our total claim against the customer by more than 10%, we shall be obliged to release such securities at the customer’s request.
4. The customer shall store the goods subject to retention of title for us free of charge. The customer shall insure them against usual risks such as fire, theft and water to the usual extent. The customer hereby assigns to us his claims for compensation to which he is entitled from damages of the aforementioned kind against insurance companies or other parties obliged to pay compensation, in the amount of his claim. We accept the assignment.

(9) Place of jurisdiction

1. The place of jurisdiction shall be at our registered office in each case, provided that the entrepreneur customer is a merchant or the other requirements of an agreement on the place of jurisdiction pursuant to § 38 of the German Code of Civil Procedure (ZPO) are fulfilled.
2. We shall always also be entitled to assert claims against the entrepreneur customer at his general place of jurisdiction.

(10) Applicable law

With respect to customers who are entrepreneurs, the contractual relationship shall always be governed by German law as between two contractual partners who have their registered office in Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

artec Sportgeräte GmbH

Melle, on the 01.12.2017