General Terms and Conditions of Generica GmbH (last amended: 20 June 2012)
§ 1 Scope of Application
(1) These General Terms and Conditions (GTC) shall apply to all business relations with our customers. The GTC shall apply only to customers who are business entities as defined by section § 14 BGB (Civil Code), or public entities or special public funds as defined by section § 310 subsection 1 BGB. In particular, the GTC shall apply to contracts for the sale and/or delivery of movable things (hereinafter also referred to as: "Goods") irrespective of whether we manufacture the Goods ourselves or obtain them from suppliers (§§ 433, 651 BGB).
(2) The GTC as last amended shall also constitute a framework agreement which applies to all future contracts made with the same customer, without making reference to these GTC in each particular contract; we will notify the customer immediately of any modification or amendment to our GTC.
(3) Our GTC shall apply exclusively. General terms and conditions used by the customer or any third party which are different from, in contradiction with, or supplementary to, our GTC shall not be applicable, even if we do not expressly object to them in any particular case. Even if we make reference to a letter which states or refers to terms and conditions used by the customer or any third party, this shall not mean that we agree to those terms and conditions. General terms and conditions used by the customer or any third party shall become part of the contract only if and to the extent to which we expressly agree to any such terms and conditions. Our approval is required at any rate, even if we are aware of the customer or third party's GTC and unconditionally deliver the Goods.
(4) Any individual agreement made with the customer in any particular case (including any side agreement, amendment or modification) shall prevail over these GTC. The content of any such agreement shall be defined by a contract or our acknowledgement made or given in writing ("Textform" as defined by section § 126b BGB).
(5) Relevant statements or notices which the customer has to send to us after the effective date of the contract (e.g. for the purpose of granting a period, complaining about defects, rescinding the contract, or reducing the price) have to be given in writing ("Textform" as defined by section § 126b BGB).
(6) Reference to any applicable provision of law is made for the purpose of clarification only. The provisions of law shall apply without making any such reference unless these GTC expressly amend or expressly exclude certain provisions of law.
§ 2 Conclusion of a Contract
(1) The quotations we provide are subject to change and non-binding unless we expressly describe them as binding, or set specific periods for accepting them. This shall also apply if we provide the customer with catalogues, technical documentation (e.g. drawings, plans, estimates, calculations, or reference to any DIN standards), or any other product description or document – even if in electronic format.
(2) Details we provide referring to the Goods or Services delivered (e.g. weights, measures, use values, performance, tolerance, and technical data), as well as the documents used for presenting those details (e.g. drawings or illustrations), are only approximate, unless they have to comply with the specifications which are required for using the Goods or Services for a particular purpose. They do not guarantee a certain quality, but merely describe or identify the Goods or Services delivered. If we want to give any guarantee including a guarantee of quality or any other guarantee, they have to be described expressly as "guarantee of quality", "promised quality", "guarantee", or "express guarantee". We are entitled to make commonly encountered deviations and deviations which are required by law or which are technical improvements, as well as to replace certain component parts by parts of equal quality, provided any such deviation does not impair the fitness for the intended purpose.
(3) Orders may be placed on our website at www.generica.net, or by email, letter or fax, or by telephone. German shall be the governing language.
(4) The presentation of the Goods on our website does not constitute a legally binding offer.
(5) When a customer places an order for Goods, he makes a binding offer to contract. Unless otherwise provided by the offer, we are entitled to accept this offer to contract within 14 days after receipt of the offer.
(6) We may accept the offer through our written acknowledgement of order, or by delivering the Goods to the customer, or by making a valid offer to fulfil the contract.
§ 3 Delivery and Shipment
(1) Delivery shall be made ex warehouse. The place of performance applying to all obligations arising from the contract shall be Generica's registered office unless otherwise provided. In case we also have to perform installation services, the place of performance shall be the place where the installation work has to be carried out.
(2) We will ship the Goods to a different place of destination other than the place of performance ("Versendungskauf") at the request and expense of the customer. Unless otherwise provided, we are entitled to determine the method of shipment (including the carrier, route, and packaging).
(3) We are entitled to make partial delivery only if
a) the customer can use the partial delivery for the intended purpose of the Goods;
b) delivery of the remaining quantity of Goods ordered is guaranteed; and
c) the customer does not incur considerable additional expenditure or additional costs, unless we agree to pay those costs.
§ 4 Passing of Risk and Default in Taking Delivery
(1) The risk of accidental loss or accidental damage to the Goods shall pass to the customer not later than upon delivery.
(2) If the Goods are to be delivered to a place other than the place of performance, the risk of accidental loss or accidental damage to the Goods as well as the risk of late delivery shall pass to the customer already upon delivery of the Goods to the carrier, forwarding agent, or any other person or entity assigned to perform forwarding services, and more precisely, as soon as they start loading the Goods. This shall also apply if partial deliveries are made or if the seller has agreed to render additional services (e.g. shipment or installation).
(3) If the Parties have agreed that express acceptance ("Abnahme") of the Goods is required, the risk shall pass upon acceptance. In addition, the provisions of the German Civil Code on contracts for work and services ("Werkvertrag") shall apply mutatis mutandis. If express acceptance is required, the Goods are deemed to be accepted if
a) delivery and installation work, if owed under the contract, have been completed;
b) we have notified the customer of completion, pointing out the consequences of implied acceptance, and have asked the customer to accept the Goods;
c) 14 calendar days have passed after completion of delivery or installation, or the customer has started to make use of the Goods (e.g. has put the component delivered into operation), and in this case 6 calendar days have passed after completion of delivery or installation; and
d) the customer has failed to accept the Goods within the period specified for any reason other than because of a reported defect which makes it impossible to use the Goods or which considerably impairs the usability of the Goods.
(4) The rules on the passing of risk upon delivery or acceptance shall also apply if the customer is in default of taking delivery. If shipment or delivery of the Goods is delayed due to a circumstance which has been caused by the customer, the risk shall pass to the customer on the day on which the Goods are ready for shipment and we have notified this to the customer.
(5) In that case, the risk of accidental loss or accidental damage to the Goods shall pass to the customer as soon as he is in default of taking delivery or otherwise fails to comply with his obligation to provide assistance.
(6) At the customer's express request and expense, we take out insurance for the shipment against theft, breakage, damage caused in transit, by fire or water, or any other insurable risk.
(7) If the customer is in default of taking delivery or otherwise culpably fails to comply with his obligation to provide assistance, we are entitled to claim damages, including any additional costs incurred (e.g. storage costs). In that case, we will charge a fixed compensation payment in the amount of 0,5% of ordervalue per calendar day, commencing at the time of delivery or – if there is no agreed time of delivery – on the date of notification that the Goods are ready for shipment. This rule shall apply without prejudice to our right to prove that the actual damages exceed or fall short of this sum, and to our statutory rights (including the right to claim compensation for expenses, to claim adequate damages, or to terminate the contract); however, the fixed sum of compensation shall be set off against any additional damages. We reserve the right to assert any other right or claim.
§ 5 Time of Delivery and Delay in Delivery
(1) The period of delivery is subject to individual agreement or is fixed when we accept the purchase order. Otherwise, the period of delivery shall be approximately 3 weeks after concluding the contract. Any period or date of delivery we estimate shall only be approximate dates unless we expressly promise or agree to meet a fixed period or date.
(2) If the Goods are to be shipped to a specific place, the period or date of delivery refers to the date on which the Goods are delivered to the carrier, forwarding agent or any other third party assigned to perform forwarding services.
(3) We may – without prejudice to our rights arising from customer's default in taking delivery – request that customer agrees to extend the period of delivery or to delay the date of delivery for as long as the customer fails to comply with his contractual obligations owed to us.
(4) We shall not be liable if delivery becomes impossible or delayed due to an event of force majeure or any other event which we could not have anticipated at the time when the contract was made and which we cannot be held responsible for (e.g. any kind of business interruption; difficulties in obtaining materials or power supply; transport delays; strike; lawful lockout; shortage of labour, power supply or raw materials; difficulties in obtaining required licences from authorities; governmental orders; or failure to make proper or timely delivery by our suppliers). If any such event makes it very difficult or impossible for us to deliver the Goods or Services, and this hindrance is not only temporary, we shall have the right to rescind the contract. If any such hindrance is temporary, the period of delivery shall be extended, or the date of delivery shall be delayed, for as long as the hindrance continues, granting a reasonable additional start-up period. If and as far as the customer can no longer be expected to take delivery of the Goods or Services due to the delay, the customer may rescind the contract immediately by written notice.
(5) The time from which we are in default of delivery shall be determined in accordance with the law. A reminder notice given by the customer is required at any rate.
(6) If we are in default of delivery or performance, or if delivery or performance becomes impossible due to any reason whatsoever, we shall only be liable for damages in accordance with section § 11 of these GTC.
(7) This shall apply without prejudice to the customer's rights set forth in section § 10 of these GTC and to our statutory rights including our rights if we are released from the duty to perform the contract (e.g. because performance and/or subsequent performance becomes impossible or impracticable).
§ 6 Prices and Payment of Costs
(1) The prices valid at the time when the contract is made shall apply, unless otherwise agreed. If the Goods are to be delivered more than 4 months after the contract was made, the prices valid at the time of delivery shall apply minus an agreed percentage or fixed sum of discount if any.
(2) The prices shall apply to the scope of deliverables specified in the acknowledgement of the order. Additional or special services are subject to an extra charge. The prices are in Euro ex warehouse plus statutory VAT. Cash discounts are included in the invoice amount unless otherwise agreed.
(3) If the Goods are to be delivered to a place other than the place of performance, the customer shall pay the shipping costs ex warehouse as well as the costs of transport insurance if the customer requests any such insurance. Unless we charge the actual shipping costs incurred in any particular case, the fixed sum of 5% of the order value (exclusive of transport insurance) shall be deemed to have been agreed on. We do not take back transport packaging or any other kind of packaging complying with the Packaging Regulations ("Verpackungsverordnung"); any such packaging becomes the customer's property; this shall not apply to pallets.
(4) The customer shall pay all customs duties, fees and taxes as well as any other charges.
§ 7 Terms of Payment
(1) Unless otherwise agreed, the invoice amount is payable without deductions within 14 calendar days after the date of invoice and delivery or acceptance of the Goods. The date on which we receive the payment determines whether it was made on time. Payment by cheque is not completed until the cheque has been honoured.
(2) If the contract value exceeds EUR 30,000,- we are entitled to request a down payment in the amount of 30 % of the purchase price. The down payment is due and payable within 14 calendar days of the date of invoice.
(3) The customer can make payment in cash, by direct debiting, by credit card, by cheque, or by wire transfer. We reserve the right to exclude certain methods of payment.
(4) The customer is in default of payment if he fails to make payment by the due date. The customer has to pay interest on the purchase price at the statutory interest rate then valid during the period of default. We reserve the right to claim additional damages for default. This shall apply without prejudice to our right to claim interest from business entities from the due date (§ 353 HGB - Commercial Code).
(5) If, after concluding the contract, it becomes apparent that our claim for the purchase price might not be fulfilled due to the customer's financial situation (e.g. a petition for bankruptcy has been filed), the law provides that we may refuse performance of the contract and rescind the contract – after granting a grace period if necessary (§ 321 BGB). If the contract is for the manufacture of non-fungible goods (customized products), we may rescind the contract immediately; this shall not affect the statutory provisions which provide that the granting of a grace period is not required.
(6) If, after concluding the contract, we become aware of circumstances which have a considerably negative impact on the customer's creditworthiness and indicate that our accounts receivable might not be paid, we are entitled to deliver Goods or Services still owed only on condition that the customer pays the purchase price in advance or provides security.
§ 8 Setoff, Right of Retention
(1) The customer must not set off his counterclaims unless they are undisputed or have been established by unappealable judgment. This shall apply without prejudice to the rights the customer has if the Goods delivered are defective.
(2) The customer must not exercise the right of retention unless his claim is undisputed or has been established by unappealable judgment. This shall apply without prejudice to the rights the customer has if the Goods delivered are defective.
§ 9 Retention of Title
(1) We retain title to the Goods sold until all present and future accounts receivable arising from the purchase contract and any existing business relationship (Secured Accounts Receivable) have been paid completely. During that period, the customer is obligated to handle the Goods with care, to provide proper insurance at his own expense, and to maintain them if necessary.
(2) The customer is not authorized to pledge the Goods title to which is retained, or to assign them as collateral to any third party until the Secured Accounts Receivable have been paid completely. The customer shall notify us immediately in writing if and as far as any third party attaches the Goods we still own.
(3) If the customer fails to comply with the contract, in particular, if he fails to pay the purchase price by the due date, we are entitled to rescind the contract in accordance with the legal provisions and, in consequence of the retention of title and rescission of the contract, to request the return of the Goods. If the customer fails to pay the purchase price by the due date, we may exercise these rights only if we previously have granted the customer a reasonable grace period, but to no avail, or the law provides that such a grace period is not required.
(4) The customer is authorized to sell and/or process the Goods title to which is retained in the ordinary course of business. In that case, the following additional provisions shall apply.
a) The retention of title shall apply to the products which are created by processing, mixing or joining our Goods with others, and their full value; we shall be deemed to be the manufacturer of those products. If the third party whose goods are processed, mixed or joined with our Goods remains owner of those other goods, we become co-owners in the ratio of the values of all goods so processed, mixed or joined. In addition, the provisions applying to the Goods title to which is retained shall also apply to the new product.
b) The customer hereby assigns to us as collateral any and all accounts receivable due from third parties after selling the Goods or the new product, in the full amount or in the amount of our co-ownership share as specified in the foregoing subsection. We hereby accept this assignment. The customer's obligations set forth in subsection 2 above shall also apply to the accounts receivable assigned to us.
c) The customer is still authorized to collect those accounts receivable. We undertake not to collect those accounts receivable, provided the customer
- fulfils his obligation to make payment to us;
- is not in default of payment;
- does not file a petition for bankruptcy or any similar proceeding; and
- his financial situation is not impaired by any other circumstance.
If that should be the case, however, we may request that the customer provides details of the accounts receivable assigned to us and of its debtors, provides all the information and documents required to collect those accounts receivable, and notifies the debtors (third parties) of the assignment.
(5) If the realizable value of collateral exceeds our Accounts Receivable by more than 10 %, we will choose and release certain items assigned as collateral at the customer's request.
§ 10 Warranty
(1) Unless otherwise provided herein, the statutory provisions shall apply to the customer's rights in case of defects in quality or title defects (including delivery of wrong item or short delivery). At all events, this shall apply without prejudice to the special statutory provisions on the delivery of goods to end consumers (claims against the supplier pursuant to sections §§ 478, 479 BGB).
(2) Our liability for defects is based on the agreed quality of the Goods. The agreed quality of the Goods is set forth in the product specifications (including those provided by the manufacturer) which are delivered to the customer before he places his order or are incorporated into the contract in the same way as these GTC.
(3) If and as far as the Parties have not agreed on the quality, the decision as to whether or not the Goods are defective shall be made in accordance with the law (§ 434 subsection 1 clauses 2 and 3 BGB). However, we are not liable for public statements made by the manufacturer or any other third party (e.g. advertising messages).
(4) The customer may assert any warranty claim only on condition that he has properly fulfilled the duties to inspect the Goods and report defects owed under sections § 377, 381 HGB. If the customer discovers any defect upon inspection of the Goods or thereafter, he shall notify us immediately in writing. Immediately means that the notification shall be made within two weeks, with the deadline being met if the notice is sent within that period. Irrespective of these duties to inspect the Goods and report defects, the customer shall report any apparent defect (including delivery of wrong item or short delivery) in writing within two weeks after delivery, with the deadline being met if the notice is sent within that period. If the customer fails to properly inspect the Goods and/or report defects, we shall not be liable for any defect not reported.
(5) If the item delivered is defective, the customer may claim subsequent performance ("Nacherfüllung") which means he may, at his discretion, claim either that the defect is removed (rework done) or that an item free of defects is delivered (replacement). If the customer fails to notify us which option he chooses, we may set a reasonable period to do so. If the customer fails to make a decision within the period provided, we shall have the right to choose one of the options ourselves after the period expired.
(6) We are entitled to provide subsequent performance only on condition that the customer pays the purchase price by the due date. However, the customer is entitled to retain part of the purchase price in proper proportion to the defect.
(7) The customer shall grant us reasonable time and the opportunity to provide subsequent performance as owed, and return the Goods he complained about so that we can examine them. If we are to deliver a replacement, the customer must return the defective item in accordance with the statutory provisions. Subsequent performance does not include the work required to remove the defective item and reinstall it, provided we have not been obligated to install it in the first place.
(8) If an item is actually defective, we shall pay the expenses incurred by examining the item and providing subsequent performance, including transport, travelling expenses, labour cost, and materials cost (exclusive of removal and reinstallation). In case the customer's request to remove a defect is not justified, we may claim reimbursement of the costs incurred from the customer.
(9) In urgent cases, e.g. if operational safety is at risk or in order to avoid considerable damage, the customer shall be entitled to remove the defect himself and to claim reimbursement of the expenses reasonably incurred. The customer shall notify us immediately, or in advance if possible, if he intends to remove the defect himself. The customer shall not be entitled to remove the defect himself if the law allows us to refuse to provide subsequent performance.
(10) The customer shall not have any warranty claims if he modifies the item delivered or has it modified by third parties, and as a result of any such modification it becomes impossible or impracticable for us to remove the defect. The customer has to pay any additional expenses for removing the defect incurred because of the modification.
(11) If subsequent performance fails, or if the reasonable period for subsequent performance granted by the customer has expired, but to no avail, or if the law does not require any such period, the customer may rescind the contract or reduce the purchase price. However, the customer is not entitled to rescind the contract if the defect is only a minor defect.
(12) The customer may claim damages and compensation for expenses made in vain only in accordance with section § 11; any other claim for damages or compensation is excluded.
(13) If any part obtained from other manufacturers is defective and we cannot remove the defect due to factual reasons or because we are not licensed to do so, we will, at our discretion, either assert our warranty claims against the manufacturers and suppliers for the customer's account or assign those claims to the customer. If any such defect occurs, the customer shall have warranty claims under the standard conditions and in accordance with these General Terms and Conditions only if the legal action taken against the manufacturers and suppliers over the claims referred to above turns out to be unsuccessful or has no prospect of success, for example because of bankruptcy. The running of the period of limitation for the customer's warranty claims against us is suspended for as long as the action is pending.
(14) If any individual contract is for the delivery of used items, we shall not be liable for any defects in quality whatsoever.
§ 11 Liability
(1) Unless otherwise provided herein, we shall be liable for a breach of contractual or non-contractual obligations under the provisions of law.
(2) In case of wilful or grossly negligent conduct, we shall be liable for damages - no matter on what grounds - in accordance with the law. We shall not be liable for negligent conduct of our corporate bodies, legal representatives, employees or any other servant, unless
a) damage has been caused to a person's life, body or health;
b) damage has been caused by violating a material contractual obligation (an obligation the fulfilment of which is required for proper performance of the contract, and the fulfilment of which the other Party has relied on or reasonably may rely on).
(3) However, if we are liable under subsection 2 clause 2, our liability shall be limited to damages which we knew would result from a breach of contract when the contract was made, or should have known if we had exercised reasonable diligence. Indirect damages or consequential damages arising from defects in the item delivered may only be claimed if and as far as such damages are typically expected to result from the intended use of the item delivered.
(4) The limitation of liability under subsection 2 shall not apply if and as far as we have wilfully failed to disclose a defect or have given a guarantee of quality of the Goods. The same shall apply to the customer's claims under the Products Liability Act ("Produkthaftungsgesetz").
(5) The customer is not entitled to rescind or terminate the contract because of a breach other than a defect, unless we can be held responsible for any such breach. The customer's right to terminate the contract for convenience (including the right pursuant to sections §§ 651, 649 BGB) is excluded. In addition, the conditions and consequences provided by law shall apply.
(6) The limitation and exclusion of liability set forth in the foregoing provisions shall also apply to the benefit of the corporate bodies, legal representatives, employees, and any other servants of the seller.
(7) If and as far as we provide technical information or consulting services, we shall provide them at no charge and shall not be liable for them to the extent to which they are not agreed on and not owed under the contract.
§ 12 Limitation
(1) Irrespective of section § 438 subsection 1 no. 3 BGB, the standard warranty period is one year from the date of delivery. If express acceptance is required, the limitation period starts to run on the date of acceptance.
(2) However, if the Goods delivered represent a structure or building, or an item which was used for a structure or building in accordance with its intended use and which caused a defect in the structure or building (building material), the limitation period is 5 years from the date of delivery in accordance with the law (§ 438 subsection 1 no. 2 BGB). In addition, the special statutory provisions referring to a third party's real right to claim return of purchased property (§ 438 subsection 1 no. 1 BGB), wilful non-disclosure on the part of the seller (§ 438 subsection 3 BGB), and claims against the supplier if goods are delivered to end consumers (§ 479 BGB), shall apply.
(3) The foregoing limitation periods provided by the purchase law shall also apply to the customer's contractual and non-contractual claims for damages which are based on defects in the Goods, unless the standard statutory limitation (§§ 195, 199 BGB) provides for a shorter limitation period if applied in any particular case. The limitation periods provided by the Products Liability Act shall be applicable at any rate. In any other case, the customer's claims for damages under section § 11 shall exclusively be subject to the statutory limitation periods.
§ 13 Intellectual Property Rights
(1) The Parties to the contract shall notify the other Party immediately in writing if a third party claims infringement of intellectual property rights or copyrights related to the item delivered.
(2) If the item delivered infringes a third party's intellectual property right or copyright, we shall, at our discretion and expense, either modify or replace the item delivered in such a way that it will no longer infringe any third-party rights but that it will still provide the functions as agreed, or obtain the right to use the item delivered for the customer by entering into a licence agreement. If we fail to do so within a reasonable period, the customer is entitled to rescind the contract or to reduce the purchase price by a reasonable amount. The customer's claims for damages, if any, shall be subject to the limitations provided by section § 11 of these GTC.
(3) If products we deliver and which we obtained from other manufacturers infringe any third-party rights, we will, at our discretion, either assert our claims against the manufacturers and suppliers for the customer's account or assign those claims to the customer. In that case, the customer shall have claims against us in accordance with section § 11 only if the legal action taken against the manufacturers and suppliers over the claims referred to above turns out to be unsuccessful or has no prospect of success, for example because of bankruptcy.
(4) We retain ownership of, and all copyrights in, any and all quotations or estimates, drawings, circuit diagrams, descriptions, plans, blueprints, software, images, calculations, prospectuses, catalogues, samples, tools, and any other information or auxiliary material provided for the customer. The customer is not authorized to provide third parties access to, disclose, use or reproduce, or allow third parties to use or reproduce, the documentation referred to above as such or any of its contents without our express approval. At our request, the customer shall return the documentation to us and destroy any copies thereof if the customer no longer needs them in the ordinary course of business or if our negotiations do not result in a contract.
§ 14 Data Handling and Non-Disclosure
(1) The Parties undertake to perform the contract in compliance with the laws and requirements referring to data protection, including the provisions of the "Bundesdatenschutzgesetz" (Federal Data Protection Act) and "Telemediengesetz" (Telemedia Act).
(2) The Parties to the contract shall treat any information and knowledge about facts referring to the Parties, manufacturing methods, trade or business secrets, and data or documents, confidential provided that information has been provided by the other Party. All Parties to the contract shall make sure that third parties working with or for the Party will not disclose any such information. In addition, the Parties shall comply with the Party's applicable security regulations referring to the non-disclosure of data and documents, provided the other Party has been notified of those regulations in a timely manner.
(3) This non-disclosure agreement shall not apply to data and information which
a) was known to the receiving party prior to the disclosure without being obligated to keep it secret; or
b) is or becomes publicly known through sources other than the receiving party; or
c) is disclosed or provided to the receiving party by a third party who is not subject to a non-disclosure agreement; or
d) must be disclosed to authorities because it is required by law; or
e) has been released for publication in writing ("Textform" as defined by section § 126b BGB) by the disclosing party; and
f) non-protectable ideas, concepts, findings based on experience, and any other method or technique as well as information, which are of a general nature or obvious.
§15 Final Provisions
(1) These GTC and all legal relationships between us and the customer shall be governed by the laws of the Federal Republic of Germany to the exclusion of any international uniform law including the UN Sales Convention. If the German law makes reference to the legal system of another state or country, any such reference shall not be valid. The requirements and consequences of the Retention of Title clause in section § 9 shall be governed by the law of the state or country in which the item concerned is located, provided the choice of law made in favour of German law is not allowed or invalid under the law of the state or country concerned.
(2) If the customer is a business entity ("Kaufmann") as defined by the "Handelsgesetzbuch" (Commercial Code), a public entity or special public fund, all disputes directly or indirectly arising from or in connection with this contract shall be settled exclusively by the courts which have jurisdiction over Generica's registered office. However, we are also entitled to bring an action before the courts which have general jurisdiction over the customer. The foregoing provisions shall not affect the mandatory provisions referring to exclusive jurisdiction.
(3) Any modification or amendment to this agreement has to be made in writing; and this clause itself can only be modified in writing.
(4) If and as far as there is a gap in the contract or in these GTC, the gap shall be deemed to be filled by a valid provision the effect of which is as close as possible to the intended effect of the contract and these General Terms and Conditions, and which the Parties to the contract would have agreed on if they had been aware of the gap.