General Terms and Conditions of Business Brodos AG

§ 1 Area of Validity

a. The general terms and conditions of business shall apply to all sales, deliveries
and transactions on a commission basis which are carried out between us, BRODOS
AG, hereinafter “Brodos”, and the distribution partners.

all sales, deliveries, transactions on a commission basis and offers are made
exclusively on the basis of these terms and conditions. Other conditions and supplementary
agreements shall only apply if confirmed in writing by Brodos. Our sales employees
are not entitled to make any supplementary verbal agreements or give any verbal
assurances going beyond the written contents of this Contract.

 

§ 2 Orders

a. All offers made by Brodos are entirely non-binding. Declarations of acceptance
and all orders must be confirmed by us in writing, by fax or by telex. Information
relating to technical data, measurements and weight are approximate values customary
within this business sector.

b. orders placed by sales partners are deemed to be binding. Should an item not
be available for delivery from stock, we shall place a reservation for your order.

c. A claim to delivery shall only apply once the ordered goods are in stock and
available in our warehouse. The availability of goods is determined on the basis
of orders received at an earlier date and the demand for special offers already
planned at the time the order is received from the sales partner. Contractual requirements
on the part of our suppliers concerning the distribution of ordered goods may affect
availability (bundle deliveries, card activations etc.)

d. Goods which are only available in restricted quantities are as a rule allocated
according to when the order is received and the amount ordered.

 

§ 3 Prices / Payment Terms

a. Unless stated otherwise, we are bound to the daily prices stipulated in the
relevant price list valid on the day of delivery.

b. all prices listed in the price list are given without statutory VAT.

c. Online orders of a value of € 450 and above are processed without the lump
sum for processing and logistics being charged.

d. The lump sums for processing and logistics in the case of bank transfer are
as follows:

  • for an order value of up to € 300 by DHL or GLS € 6.99,
  • for an order value of up to € 750 by DHL or GLS € 4.99,
  • for an order value of €750 or more by DHL or GLS delivery is made without charging
    the lump sum.

In the event that delivery by UPS is requested, an extra charge of € 1.99 is
calculated in addition to the regular lump sum.

Transport insurance amounts to 0.3% of the value of the goods.

e. In the event of cash on delivery, an extra charge is calculated in addition
to the standard lump sum:

  • for DHL € 3.60,
  • for GLS € 6,50,
  • for UPS € 5.00, whilst in this instance an additional charge of € 1.99 is also
    charged.

f. Due to fluctuations in exchange rates, we reserve the right to amend the prices
listed in the price lists at any time.

 

§ 4 Delivery

a. Binding or non-binding delivery dates or times must be given in writing in
order to be valid.

b. Delivery times do not take time spent in transit into account.

c. All deliveries are made on the behalf and at the expense of the sales partner.
Transport insurance is taken out for each delivery.
The costs are borne by the sales partner.

d. We shall not be responsible for delays to deliveries and performance even
if a binding delivery date has been agreed if such delays are due to force majeure
or other unavoidable occurrences (e.g. natural disasters, strikes, lock-outs, official
orders etc.). Occurrences of this nature entitle us to refrain from making the delivery
or providing the services for the duration of the disruption or to withdraw from
the contract on the basis of not yet having performed or not having performed in
full. If the disruption lasts for longer than 3 months, the sales partner shall
be entitled to withdraw from the part of the contract which has not yet been completed
after having set an appropriate notice period.

e. The sales partner shall not be entitled to file a claim for compensation if
delivery times are extended or if we are released from our obligation to deliver.

f. The sales partner shall be entitled to claim for compensation for loss caused
by delay amounting to 0.5% for each complete week of the delay provided we are responsible
for failing to meet binding deadlines or are in default. Compensation for loss caused
by delay shall amount at most to 5% of the value of the invoice for the performance
affected by the delay. No claims going beyond the above may be brought unless the
default is due to gross negligence on our part.

g. We are entitled to make partial deliveries and partial performance.

h. Any shortfalls in delivery shall be brought to our attention in writing or
by fax or telex immediately, but at the latest 24 hours after delivery. If any components
of a product are missing, the product, packaging and outer packaging shall be retained
for us. Outer packaging shall be kept available for collection, and if claims for
subsequent delivery are to be asserted, an affirmation in lieu of an oath regarding
the missing goods has to be filed by the sales partner using our form (see Appendix).

i. We shall not be liable for any damage caused during transport if the outer
packaging is not retained for inspection of the damage caused en route.

 

§ 5 Stock price protection

We do not as a rule accept returned goods or provide compensation for fluctuations
in stock prices. Any individual agreements to the contrary shall be made in writing.

 

§ 6 Transfer of risk

a. The risk shall pass to the sales partner when the shipment is passed on to
the person responsible for transport or is dispatched from the warehouse.

b. If delivery cannot be made through no fault of our own, risk shall be passed
to the sales partner once notification is given that the shipment is ready for dispatch.

 

§ 7 Guarantee

a. Goods are guaranteed for 2 years from the date of delivery of the goods. Evidence
of the date of delivery shall be provided by the sales partner. A guarantee in the
legal sense is not given, unless stated otherwise.

b. Written notification of defects shall be provided to us immediately, but at
the latest 5 working days after delivery. Written notification of any defects which
could not be discovered within this period in spite of subjecting goods to a careful
inspection shall be provided to us immediately as soon as they are discovered. Otherwise,
guarantee claims may not be asserted. The sales partner is fully responsible for
providing evidence of all requirements for making a claim, in particular the fault
itself, the time the fault was discovered and the timeliness of the notice of defect.
An accurate description of the properties of the goods shall be deemed to be provided
by the manufacturer’s product description; advertising promises and other public
statements made by the manufacturer shall not be deemed to give an accurate description
of the properties of the goods pursuant to the contract. In the event of inadequate
construction or instruction manuals, we shall be entitled to remedy this defect
by supplying error-free manuals. The obligation to do so shall only apply in those
instances where the defective instructions for operation or assembly would prevent
goods from being assembled or used correctly.

c. Our guarantee obligations shall not apply if the product has been altered
or amended in any way contrary to the instructions for use and maintenance or if
accessories other than the original accessories have been used with the goods or
if the goods have been used in any other inappropriate manner.

d. We can choose whether to meet our guarantee obligations by rectifying the
defects or providing a replacement delivery.

e. In order to assert guarantee claims, sales partners shall return the device
in the original box to the manufacturer’s service department. The manufacturer shall
either send the sales partner the repaired device or a replacement device.

f. The addresses of the service departments of the various manufacturers are
printed in our catalogue, can be viewed on our website or can be obtained from our
sales staff. The product shall be returned to us if we are unable to pass on the
address of the manufacturer of the faulty product.

g. If it becomes clear when inspecting a product which has been sent back for
repair (under guarantee) that this product is not faulty, the sender shall be charged
with the costs for inspection and postage.

h. If the fault is not remedied after two attempts, the sales partner can choose
between rescinding the contract or having the purchase price reduced.

i. Claims based on defects shall not be allowed if the sales partner has failed
to safeguard rights of recourse with respect to third parties.

j. If the device is damaged or made worse in any way while in our premises
for the purpose of remedying defects, we shall only be liable in the event of gross
negligence.

k. Only the direct sales partner shall be entitled to bring claims against us
based on the guarantee. Such claims may not be assigned to third parties.

l. The above guarantee provisions are final and exclude any other guarantee claims
in any way, shape or form. This shall not apply to claims for damages arising from
promises as to the properties of goods aimed at securing the sales partner against
the risk of consequential harm caused by a defect.

 

§ 8 Retention of title

a. We reserve the title to all goods delivered by us until the party placing
the order has settled all outstanding claims including receivables from all other
open accounts which have been or will be created on the basis of the business relationship.
The above shall only apply if the value of the goods does not exceed the value of
the receivables by more than 20%.

b. The sales partner is entitled to dispose of the goods to which title is retained
in the ordinary course of business. The goods may not be disposed of in any other
way. We shall be notified immediately if the goods to which title is retained are
seized and a copy of the seizure record shall be attached.

c. The sales partner hereby assigns to us by way of precaution all claims concerning
the goods to which title is retained arising from the sale of the goods or for any
other legal reason.

d. Sales partners are entitled to collect all receivables until such time as
we withdraw permission for them to do so in the case of a default in payment or
insolvency. In this instance, the sales partner shall at our request provide a written
declaration of assignment of his claims and submit confirmation of his retention
of title vis-à-vis third parties and to assign any rights to recover possession
against any third parties.

e. Whenever goods are recovered or seized, we shall be deemed to have rescinded
the contract. We shall thereafter be entitled to sell the goods. Proceeds from the
sale shall be deducted from the receivables due from the sales partner, after deducting
reasonable handling costs.

 

§ 9 Payment

a. Unless agreed otherwise in writing in any individual instance, goods shall
be delivered cash on delivery.

b. If invoicing is selected as the method of payment, the invoice shall be due
for payment immediately net and without deduction. In the case of large orders:
payment terms shall be agreed in writing.

c. Default charges of at least 9% above the base interest rate shall be charged
for late payment in accordance with § 288 II German Civil Code (BGB). In addition,
the sales partner shall be charged a lump sum of €40 in accordance with § 288 V
BGB. This sum shall also be due for payment if an unauthorised chargeback is made.
In the event of a default in payment, all discounts and other allowances shall cease
to apply.

d. We are entitled to set off payments made by the sales partner against older
debts, irrespective of whether the terms and conditions of the sales partner state
otherwise. The sales partner shall be informed as to the manner in which debts are
offset. If costs and interest have already been incurred, we are entitled to set
the payment off against first the costs, then the interest and finally the main
debt.

e. If the sales partner falls into default with payments, we shall be entitled
to retain or refuse all or part of further deliveries made on the basis of this
or any other contracts and to demand immediate payment for all deliveries, for payment
to be made in advance, and in the event of fault, claim damages for failure to comply
with the terms of the contract.

f. The sales partner shall only be entitled to set claims off against claims
that have been recognised by a court of law or are recognised by us. The sales partner’s
right to retention must be based on the same contractual relationship.

g. Payments which are not made to us directly shall only be accepted by us as
settlement once they have been finally booked to our account or credited to us.

h. Each party shall bear the costs incurred for meeting their obligations, such
as for example bank charges (cf. § 270 I BGB), themselves. Any contractual agreements
to the contrary shall take precedence.

 

§ 10 Restriction of Liability

a. Our liability to compensate for damages, no matter on which legal grounds,
shall be restricted to intent and/or gross negligence.

b. We shall not be liable for financial loss or consequential damages, and in
particular not for lost profit.

c. We are not obliged to pay the sales partner damages if third party products
and commodities infringe the industrial property rights of third parties. In this
case, we shall assign our claims against our suppliers to the sales partner.

 

§ 11 Commission payments

a. Sales partners shall procure contracts for the service providers / network
carriers, hereinafter providers.

b. Sales partners shall be entitled to commission from the providers for contracts
procured via us at the rates applicable on the day the contract is activated. Overviews
shall be sent automatically by fax to all sales partners. In addition, commission
overviews can be accessed at all times via BRODOS PoS.

c. A claim to payment shall only arise if the customer meets his or her contractual
obligations at least during the current cancellation period, the provider does not
refuse to pay the commission and we receive the original application within a period
of 14 days.

d. Commission is paid on a daily basis, provided the customer does not have any
outstanding debts with us.

e. Sales partners undertake not to forward any applications for prepaid cards
or Kid phone cards if it is known or legitimately suspected that the customer does
not intend to top up the cards.

f. Sales partners undertake to refrain from submitting applications for card
activations if they know or ought to have known that the customer will either fail
to meet or will not duly meet the obligations stipulated in the contract.

g. If more than 3 cards are activated for any one end customer, the sales partner
shall only receive commission for the first 3 contracts. No commission shall be
paid for any further contracts. Individual agreements, for example for corporate
customers, must be confirmed in writing.

h. If any of the above obligations are infringed, we shall be entitled to demand
that the basic commission and all other payments made in this context are returned
and to hold the sales partner liable for all damage caused as a result of the breach
of the duty to take due care.

i. Commission can be charged back to the sales partner if it is charged back
to us by the provider.

 

§ 12 Right to charge VAT

The sales partner confirms to Brodos that his company generates turnover subject
to VAT; Brodos is therefore entitled to demand a separate statement of VAT. The
sales partner confirms that his company does not qualify as a small business within
the meaning of § 19 German VAT Act.

 

§ 13 Applicable law / Jurisdiction

a. The place of performance and jurisdiction for both parties shall be Nuremberg.

b. All disputes arising from this contract, in particular those involving foreign
partners, shall be governed by German law. The terms of the UN Sales Convention
(CISG) shall not apply.

 

§ 14 Saving clause

If any individual provision in this contract is invalid, this shall not affect
the validity of the other provisions. The invalid provision shall be replaced by
another provision coming as close as possible to the economic intention of the original
provision.

 

§ 15 Final Provisions

a. Unless confirmed otherwise by us in writing, all sales will be solely governed
by our delivery, guarantee and payment terms. We hereby expressly contradict any
terms and conditions of the customer which state otherwise. These shall not apply
even if we do not explicitly object to them at the time the contract is concluded.
We are also not obliged to file an objection if we only receive the notice of confirmation
from the sales partner stating their terms and conditions after sending off our
order confirmation.

b. For subsequent orders, our terms and conditions shall apply even if no specific
reference is made to them.

 

Status 04/2016