General Terms and Conditions of Birdtical GmbH

1. scope of application

1.1 These General Terms and Conditions apply to every contract concluded between you (hereinafter: “Client”) and Birdtical GmbH (hereinafter: “Contractor”). 1.2 The Contractor’s offer is aimed exclusively at persons of legal age and full legal capacity as well as legal entities (companies). 1.3 A consumer within the meaning of the following provisions is any natural person who concludes a legal transaction for purposes that can predominantly be attributed neither to their commercial nor their independent professional activity. An entrepreneur is any natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of his independent professional or commercial activity.
1.4 Any terms and conditions of yours that conflict with or deviate from these Terms and Conditions of Sale shall only apply if the Contractor has expressly agreed to their validity in writing.
1.5 These Terms and Conditions of Sale shall also apply to all future orders between you, the Client, and the Contractor.

2. offer and conclusion of contract

2.1 Offers submitted by the Contractor are non-binding and do not constitute a binding offer to conclude a contract.
You may submit a binding offer verbally, by telephone, in writing or electronically.
2.2 The contract shall be deemed concluded when the Client expressly accepts the offer by means of an order confirmation or when the delivery or handover of the goods has been completed.

3. prices and payment

3.1 The prices and payment terms agreed with the client in the order confirmation shall apply. Unless otherwise agreed, an advance payment of 50% of the total order value shall be due upon conclusion of the contract. A further 50% shall be payable after complete delivery, unless additional services were ordered after delivery (e.g. support services during commissioning), in which case 40% of the total order value shall be payable after complete delivery and a further 10% after provision of the additional services. 3.2 Discounts are not granted unless otherwise agreed in writing. 3.3 If you are an entrepreneur and no other payment term has been agreed, invoices must be paid within 14 days of receipt of the invoice at the latest. 3.4 You will be in default even without a reminder if you do not pay within 30 days of the due date and receipt of an invoice or equivalent payment schedule. 3.5 The shipping costs are charged at a flat rate in addition to the stated product prices. The exact shipping costs are clearly shown in the order process or in the offer and are to be borne by the customer, unless free delivery is offered.
3.6 Ongoing costs are incurred for the use of the portal and any other software solutions, which are charged depending on the service and use. These are clearly indicated in the offer.

4. acceptance for work services

4.1 Acceptance of work services shall take place upon completion, unless partial acceptance has been expressly agreed. 4.2 If there is no express acceptance, acceptance shall be deemed to have been granted if the client does not expressly declare a refusal of acceptance due to significant defects within 10 days of completion and handover of the work. 4.3 Acceptance may not be refused due to minor defects which do not impair the function of the work and the rectification of which is disproportionate to the outstanding residual remuneration claim.

5. data protection and data security

5.1 The protection of personal data is important to us. For further information on data protection, please refer to our separate privacy policy.

6 Delivery and delivery times

6.1 Specified delivery periods and dates are non-binding unless they have been expressly agreed as binding in writing. The delivery period shall not commence until all technical and commercial details have been clarified and the Client has fully complied with its obligations to cooperate, in particular the timely payment of an agreed down payment.
6.2 The Contractor shall not be liable for delays caused by force majeure or unforeseeable events beyond its control, including but not limited to natural disasters, war, strikes, pandemics, official measures or delays in delivery by third parties. In such cases, the delivery period shall be automatically extended by the duration of the hindrance plus a reasonable start-up period.
6.3 If the delivery or installation is delayed due to circumstances for which the Client is responsible, such as lack of accessibility of the installation site, incomplete or incorrect information or late payments, the Contractor shall be entitled to postpone the delivery accordingly.
6.4 If the Contractor is exceptionally in default, the Client shall be obliged to set a reasonable grace period of at least 4 weeks. Only after the fruitless expiry of this grace period shall the Client be entitled to withdraw from the contract.

7. reservation of title

7.1 The Contractor shall retain title to all goods delivered until all claims against the Client arising from the same contractual relationship have been satisfied. 7.2 If the Client is an entrepreneur, the following shall apply in addition:
a. The Contractor shall retain title to the goods until all claims arising from the current business relationship have been settled in full, i.e. including those not arising from the same contractual relationship. b. Prior to the transfer of ownership of the reserved goods, pledging or transfer by way of security is not permitted. The Client must inform the Contractor immediately in writing if an application is made to open insolvency proceedings or if third parties seize the goods belonging to us (e.g. seizures).
c. If a Client conducts a business operation that includes the resale of tires, it is entitled to transfer ownership of delivered goods in the ordinary course of business. In the event of sale, he hereby assigns to the Contractor in full the claims to which he is entitled from the sale, together with all ancillary rights, until the Contractor’s claims have been settled in full. If the Contractor sells the goods delivered by the Customer together with other items not belonging to the Customer, whether without or after combining, mixing, processing or treatment, the assignment of the purchase price claim in the amount of the contract price of the reserved item plus an amount of 10% of the resale price, which shall be offset against interest and costs after receipt of the amount, shall be deemed agreed. The Customer is obliged to provide the Contractor with the information and documents required to assert its rights at the Contractor’s request.
d. In the event of seizure by third parties, in particular in the event of seizure of the object of purchase or the exercise of a workshop’s entrepreneurial lien, the Customer must notify the Contractor immediately in writing and inform the third party immediately of the Contractor’s retention of title.

8. warranty

8.1 Unless this has been agreed separately as a service, the Contractor shall not be liable for the freedom from approval or eligibility for approval of systems under building law or other regulations. 8.2 If, in addition to the delivery of services, support during commissioning has also been agreed, the Contractor shall not owe any success and shall not assume any responsibility for the correctness of the settings and regulations made at the customer’s request. 8.3 As a consumer and in the case of purchase contracts or contracts for work and materials within the meaning of Section 650 of the German Civil Code (BGB), the Customer is requested to check the system parts/goods immediately upon delivery for completeness, obvious defects and transport damage and to notify me or any forwarding agent used of any complaints as soon as possible. If the client does not comply with this, this shall have no effect on his statutory warranty claims.
8.4 If the client is an entrepreneur, obvious defects must be reported immediately, defects that are not obvious must be reported immediately after the defect is discovered. In the event of non-compliance with these notice periods, the goods delivered by the seller shall be deemed approved within the meaning of § 377 HGB (German Commercial Code) and claims for material defects shall be excluded, unless the customer is guilty of intent or gross negligence. 8.5 If the client is an entrepreneur and if a purchase contract or contract for work and materials within the meaning of Section 650 BGB exists, the following warranty provisions shall also apply:
a. Only our own specifications and the manufacturer’s product description shall be deemed agreed as the quality of the item, but not other advertising, public promotions and statements by the manufacturer. b. Warranty claims do not exist if the item deviates only insignificantly from the agreed quality or the usability is only insignificantly impaired. c. In the event of defects, we shall, at our discretion, either rectify the defect or replace the goods. If the rectification of defects fails, you may, at your discretion, demand a reduction in price or withdraw from the contract. The rectification of defects shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item or the defect or other circumstances indicate otherwise. In the event of rectification of defects, we shall not have to bear the increased costs arising from the transfer of the goods to a place other than the place of performance, unless the transfer corresponds to the intended use of the goods.
d. The warranty period shall be one year from delivery of the goods. The shortening of the period shall not apply:
– in the event of culpably caused damage attributable to us arising from injury to life, limb or health and in the event of other damage caused intentionally or through gross negligence;
– in the event of a breach of essential contractual obligations, the fulfillment of which is essential for the proper execution of the contract and on the observance of which you may regularly rely (cardinal obligations);
– insofar as we have fraudulently concealed the defect or have assumed a guarantee for the quality of the item or insofar as the scope of application of the Product Liability Act is opened. 8.6 If, in the course of a rectification of defects, it turns out that there is no defect or that the responsibility for any malfunctions or errors does not lie with the contractor, the client shall reimburse the expenses incurred in a reasonable amount.

9. right of withdrawal for consumers in distance contracts

9.1 If you are a consumer, you have the right to withdraw from the contract concluded with the seller within fourteen days without giving reasons in the case of a distance contract. The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, took possession of the goods.
9.2 In order to exercise your right of withdrawal, you must inform the contractor (Birdtical GmbH, Gewerbepark Lindach B 1, 84489 Burghausen) of your decision to withdraw from this contract by means of a clear declaration (e.g. a letter sent by post or e-mail). You may use the following model withdrawal form, but it is not obligatory. Sample withdrawal form To

Birdtical GmbH
Industrial Park Lindach B 1 84489 Burghausen

info@birdtical.com
I/we hereby revoke the contract concluded by me/us: ………………………………………………………… Product(s)
…………………………………………………………
Order number
Name and address of the consumer
………………………………… ………………………………… ………………………………… ……………………………
……………………….. Date
……………………………………………. Signature of consumer (only for written withdrawal) 9.3 The withdrawal period is 14 days from the day – on which you or a third party named by you, who is not the carrier, have taken possession of the goods, if you have ordered one or more goods as part of a single order and the goods or goods are delivered uniformly; – on which you or a third party named by you, who is not the carrier, have taken possession of the last goods. if you have ordered several goods as part of a single order and the goods are delivered separately; – on which you or a third party named by you, who is not the carrier, have taken possession of the last partial shipment or the last item, if you have ordered goods that are delivered in several partial shipments or pieces; If several of the above alternatives exist, the withdrawal period shall only begin when you or a third party named by you, who is not the carrier, have taken possession of the last goods or the last partial shipment or the last item. To comply with the withdrawal period, it is sufficient that you send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period. 9.4 If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; under no circumstances will you be charged any fees for this repayment.
We may refuse to refund you until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earliest.
You must return or hand over the goods to us immediately and in any case within fourteen days of the day on which you notify us of the revocation of this contract at the latest. The deadline is met if you send the goods before the period of fourteen days has expired. You shall bear the direct costs of returning the goods, both for goods that can be sent by parcel post and for goods that cannot be sent by parcel post. In the case of goods that cannot be sent by parcel post, the return costs are estimated at a maximum of around 200.00 euros.
You only have to pay for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for checking their condition, properties and functionality.

10 Offsetting and rights of retention

The client shall only be entitled to rights of set-off or retention insofar as these relate to claims arising from the same contractual relationship.

11. liability

11.1 Claims against the Contractor for damages are excluded. Excluded from this are claims for damages arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the Contractor, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.
11.2 In the event of a breach of essential contractual obligations, the Contractor shall only be liable for foreseeable damage typical for the contract if this was caused by simple negligence, unless it concerns claims for damages arising from injury to life, limb or health.
11.3 The Contractor shall not be liable if ordered works are subject to approval but not eligible for approval (building permit required). The Client is responsible for this.
11.4 The limitations of the aforementioned clauses also apply in favor of the Contractor’s legal representatives and vicarious agents if claims are asserted directly against them.

12. final provisions

12.1 There are no verbal collateral agreements. All amendments and additions to the contract must be made in writing to be valid. This shall also apply to any waiver of the written form requirement itself.
12.2 Should any provision of the contract be invalid or unenforceable, this shall not affect the validity of the remainder of the contract. In such a case, the Contractor and the Client undertake to replace the invalid or unenforceable provision with a valid or enforceable provision that corresponds as closely as possible to the spirit and purpose of the provision to be replaced in terms of the economic result. This applies accordingly to any loopholes in the contract. This clause does not result in a mere reversal of the burden of proof; rather, Section 139 BGB is waived in its entirety.
12.3 This contract and the entire legal relationship between the parties shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
12.4 The place of performance and exclusive place of jurisdiction for all disputes arising from this contract shall be the Contractor’s registered office, insofar as this can be permissibly agreed.
12.5 The Contractor shall not participate in a dispute resolution procedure before a consumer arbitration board within the meaning of the VSBG and is not obliged to do so.