1. Scope of General Terms and Conditions

Our General Terms and Conditions apply to all deliveries and services that are offered, performed, sold or arranged by us directly or via a third party, in particular the distance contacts offered and processed by us within the meaning of Art. 312 b ff of BGB (German Civil Code) if the customer is a consumer in accordance with the law. They apply to all relevant deliveries and services and to all future transactions of the same type even if they have not been expressly agreed to once again.

Deviations from our General Terms and Conditions are only applicable if they have been confirmed by us expressly in writing on an individual case basis. A counter-confirmation made by the customer with reference to its own terms and conditions of purchase are hereby rejected; a valid contract requires in such case that an agreement is reached regarding the scope of the General Terms and Conditions.

The General Terms and Conditions may be requested from us or viewed and downloaded free of charge at http://ooh-ya.com/htdocs/english/gen_bus_cond/208.html.

2. Offer, Order and Contract Formation

The offers and presentations we make online in the Internet, in catalogs or other sales-related tools are not binding. The figures, technical information, designations, samples, specimens, specifications and details about performance, which are included in the offer, only serve as information and are deemed non-binding until we have confirmed the characteristic established by mutual consent for the contractual use.

A contract only comes into force with the customer’s letter of acceptance or our order confirmation or an agreement that is signed by both parties. The declarations of intents, which are necessary for the contractual formation, may be made by means of fax, e-mail or a “mouse click” online; in such case the contract takes effect only after receipt of our order confirmation, which can also be rendered via fax, e-mail or via the internet, the transmission sheet is valid as proof of receipt. That also applies to contractual amendments or ancillary arrangements.

In case of online auctions (e.g. eBay), the placement of the product and the customer’s bid apply as effective declarations of intent to conclude a sale contract. The contract comes into force with the acceptance of the bid, which is sent electronically.

3. Scope of Delivery and Services

The scope of delivery and services of all parts, components, accessories, spare parts, plans, system descriptions and user’s instructions to be delivered is included in the contract, if necessary in a separate list as annex to the contract.

Deliveries and services, which are not contained in the aforementioned technical description or in the annexes, are supplied or implemented only on the basis of a separate order that is effective with a confirmation made by us and are to be compensated separately.

Changes and deviations from the details made in the offer or the performance specifications are permissible provided the change or deviation is reasonable while taking the customer’s interests into consideration.

We reserve the right to commission a third party with the fulfillment of our obligation to delivery and perform or to have a third party perform the services completely or in part. This in no way affects our liability for the proper fulfillment of the contract.

4. Consumer’s Right of Cancellation and Return

4.1 Cancellation – The customer is no longer bound to its declaration of intent to conclude the contract, if the customer has cancelled its declaration of intent in good time. The cancellation does not need to contain an explanation and must be made in writing (via fax or e-mail) or by returning the product to us within two (2) weeks; for meeting the deadline timely mailing is sufficient.

The period begins as of the time at which the customer has received these special instructions about its cancellation right in writing via the internet or by fax. The cancellation and return of the product are to be addressed to the company "OOH-YA.COM GmbHl“ as cited in the heading of these General Terms and Conditions or sent to a different address that we provide on an individual case basis.

If these special instructions are made available after signing the contract, the cancellation period is one (1) month.

4.2 Consequences of cancellation – In case of a valid cancellation, the services received by both parties are to be returned. If the customer is unable to return the received product in full or in part or can only return it in a worse state of repair, it must compensate us for the value. This does not apply if the degradation is caused by proper use and the customer has exercised the care that he tends to exercise in his own matters. The buyer is entitled to return items that are used and sold as un-inspected free of charge within one month after receipt. The right to supplementary performance is excluded.

4.3 Return – Products that can be sent via parcel service are to be sent back. We bear the costs and risks of the return. The customer bears the regular costs of the return, if the price of the product to be returned, including sales tax, does not exceed EUR 40.00 or if, in case of a higher price, the customer has not paid the purchase price or an installment, unless the delivered product does not correspond with the ordered product.

4.4 Exclusion: Only consumers are entitled to the right to cancel and return in accordance with this provision. If the customer is a businessperson as defined in the HGB (German Commercial Code), he/she is not entitled to cancellation.

End of Cancellation Clause.

5. Prices and Terms of Payment

The prices contained in our offers, in the order confirmation, in the contract and our price lists are net prices, to which the statutory sales tax must still be added. Shipping costs, delivery charges and packaging are calculated separately.

In general, we only deliver the products as collect on delivery or cash payment at the time of pick-up, in exceptional cases on account, which is due immediately without discount at the time of receipt.

In case of default in payment, we are authorized to demand interest on the defaulted payment, totalling 5% per year over the base interest rate of Art. 247 of BGB (German Civil Code).

If, after the formation of the contract, we become aware of a significant deterioration in the customer’s financial circumstances, which could pose a risk to our compensation claims, if the customer should, e.g., discontinue its payments, is over-indebted, become the subject to bankruptcy proceedings or the opening of the bankruptcy proceedings is rejected due to insufficient funds, all of our claims are due and payable immediately. We are then entitled to reject further deliveries and services, to retrieve already delivered products on the basis of the right of retention and to make future deliveries and services only on the basis of advance payments or collateral security.

If there are more than four (4) months between the formation of the contract and delivery or performance of service, the price may be adjusted to the general trend of costs.

The offsetting or the assertion of a right of retention against outstanding debts of the company OOH-YA.COM GmbH or another company of the Biglari Group is only permissible, if the customer’s counterclaims are undisputed or non-appealable.

In case of justified doubts regarding the customer’s ability to pay, we are entitled to demand advance payments or collateral security for future deliveries and services and to revoke the time for payment allowed and to make all claims immediately due and payable. If the customer fails to pay the requested advance in due time, we are entitled to withdraw from the contract.

6. Deadlines, Period of Delivery and Performance

The deadlines for delivery and performance cited in the order confirmation or in the contract are only roughly binding. We will strive to observe the indicated deadlines. Default of delivery calls for a reminder; if we are in default, it is necessary to grant us an appropriate grace period to fulfill the contract. The grace period should be at least two (2) weeks. Should the grace period elapse to no avail, the ordering party is entitled to withdraw from the contract and to request compensation of damages due to non-fulfillment if we have acted with intent or gross negligence.

Delivery problems and impairment of performance, which can be attributed to force majeure or other circumstances that are beyond our control and which are not foreseeable when exercising extreme care and cannot be prevented at a reasonable expenditure and which significantly impede or render our delivery and/or performance options completely or partially impossible, such as strike, lockout, extraordinary weather conditions, equipment failures, traffic disturbances and obstructions, even outside of the Federal Republic of Germany, release us from our obligation to deliver and/or perform as long as they last. The customer may not derive any rights in this regard, unless we have acted with intent or gross negligence.

7. Place of Performance, Passage of Risk

Place of performance is the registered office of our company in Graefelfing, unless specified otherwise. At the customer’s request we can deliver to a location specified by the customer subject to the assumption of the usual shipping and transport costs.

The risk of destruction or deterioration is transferred to the customer at the time of pick-up, in case of delivery once we hand over the product to the forwarding agent, the postal service or a company that is entrusted with the shipment. If the shipment should be performed by a specified deadline at the customer’s request, the risk passes over to the customer with the notice regarding the readiness to ship.

8. Warranty and Liability

We provide a warranty for the products that we manufacture and/or distribute within the framework of the statutory provisions and ensure that our products are free of redhibitory defects and defects in title, that they are suited for the intended use set forth in the contract or for typical use and that they possess a configuration that is usual for the same type of products. In such case, the customary specifications and the quality standards, characteristics and designations established in the relevant guidelines for products of the same type are applicable, including the permissible tolerances and limits for substances that are relevant for the environment. We only assume responsibility for a special configuration that is in excess of the typical use of the product if this has been expressly agreed upon in writing in the contract.

The warranty period is two (2) years for new products and twelve (12) months for used products, starting on the respective date the product was received. The customer must inspect the delivered products and other services immediately upon receipt and/or commissioning and, if a deficiency is noted, report the deficiency to us in an understandable manner in writing, via fax or e-mail also possible.

The notification of obvious deficiencies , i.e., that are unconcealed and evident without inspection is subject to a two-week cut-off period after receipt of the product; concealed deficiencies are to be reported within the aforementioned warranty periods. If a deficiency appears within six (6) months after the transfer of the risk, it is assumed that the product was already deficient at the time of transfer of risk, unless this assumption is inconsistent with the type of the product or the deficiency.

If there is deficiency that can be attributed to us, we reserve the right to rectify the deficiency or offer substitution at our discretion. The customer shall grant us the time and opportunity that is necessary at reasonable discretion. A claim for damages due to non-fulfillment presupposes that we have attempted to rectify the situation several times without success or have offered substitution.

Our warranty does not apply if the delivered product is improperly handled, used, implemented or modified or our operating instructions, use criteria and safety precautions are not observed.

We are only liable in case of intent or gross negligence or omission on our part or that of our employees and assistants. In any case, our liability is limited to the compensation for the direct damage, the compensation for indirect or consequential damages is excluded. We are not liable in particular for damages that have occurred indirectly due to the application of hardware or software provided by us, for loss of data, computer viruses that are contracted externally without our knowledge, so-called Trojans and similar impairments affecting the customer’s existing computer systems, unless we have acted with intent or gross negligence.

9. Retention of Ownership

The products delivered by us remain our property until all the customer’s open accounts have been paid in full (product subject to retention of ownership).

The customer may not make use of product subject to retention of ownership nor may such product be resold, lent, leased, given in mortgage or as a present. In case of third party access to the product subject to retention of ownership, especially by a bill collector, the customer must point out that the product is our property and must inform us promptly. Costs and damages in this context are borne by the customer.

Should the customer act in breach of contract, especially in case of default in payment, we are entitled to reclaim the product subject to retention of ownership at the customer’s expense.

10. Industrial Property Rights, Privacy Protection

We retain the copyright to any and all products and services provided by us, provided that these are eligible for industrial property rights, this also applies to protected trademarks and other marks within the meaning of Germany’s Trademark Act.

In any case, the customer must indemnify us from any third party’s claims due to violations of industrial property rights, unless we have intentionally or negligently failed to inform the customer about any third party industrial property rights.

Any personal information relating to the customer, its employees or principal within the meaning of Germany’s Data Protection Act will only be stored, used, modified or deleted by us for processing offers and purchase orders and will not be used or made accessible to third parties without the express authorization of the related party(-ies).

Personal information shall be deleted once it is no longer necessary for us and the customer in order to fulfill the order.

11. Applicable Law, Jurisdiction, Severability

The contractual relationship and all resulting rights are subject to the laws of the Federal Republic of Germany while excluding any specifications that make reference to foreign legal systems. That also applies to claims resulting from the start of contractual negotiations and the initiation of a contract.

Competent court is Munich, Germany.

Contractual language is German, unless expressly stipulated otherwise. No amendments or changes to the contract, notices and other statements shall be binding unless made in writing, verbal arrangements have no legal force.

Should any individual provision or any part of any provision of these terms and conditions be or become void or unenforceable or if a loophole is determined, the validity of the remaining provisions hereof shall in no way be affected. In such case the void and/or unenforceable provision shall be replaced by a relative provision coming as close as possible to the original sense and spirit and purpose of the void or unenforceable provision; that also applies to remedying any loopholes.

These General Terms and Conditions also apply to transactions with resellers and commercially active business persons with the limitation that the regulations pertaining to consumer protection are replaced by the statutory provisions of commercial law and trade law or freely arranged individual agreements.