TERMS OF SERVICE

§ 1 Scope, form

(1) These General Terms of Sale (GTS) shall apply to all our business relationships with our customer (“Buyer”). The GTS shall apply only if the Buyer is an entrepreneur (§ 14 German Civil Code [Bürgerliches Gesetzbuch – BGB]), a legal entity under public law, or a public-law special fund.

2) The GTS particularly apply for contracts concerning the sale and/or delivery of movable goods (“Merchandise”) without considering whether we manufacture the Merchandise ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise stipulated, the version of the GTS that is valid at the time that the Buyer places the order and/or the latest version provided to the Buyer in text form in any case shall also apply as a framework agreement for future, identical contracts, with no need on our behalf to make reference hereto in every single case.

3) Our GTS shall exclusively apply. Differing, contradictory, or supplementary general terms and conditions from the Buyer shall become part of the contract only and to the extent to which we have explicitly consented to their validity. This requirement of consent shall apply in every case, particularly if the Buyer refers to their GTC during the order and we do not explicitly consent hereto.

4) Individual agreements (e.g., framework supply agreements, quality assurance agreements) and information in our order confirmation shall have priority over the GTS. In case of doubt, the commerce clauses shall be interpreted according to the latest version of Incoterms® published by the International Chamber of Commerce in Paris (ICC) at the time that the Agreement has been concluded.

5) The Buyer must submit legally relevant statements and declarations related to the Agreement (e.g., deadline, notice of defect, rescission, or price reduction) in written form. Written form within the meaning of these GTS includes written and text form (e.g., letter, e-mail, telefax). Statutory form requirements and additional proof, particularly in case of doubts regarding the proof of identity of the party issuing the statement, shall remain unaffected.

6) Information on the validity of statutory guidelines is important for clarification purposes only. Even without such clarification, the legal provisions shall therefore apply unless they have been indirectly amended in these GTS or explicitly prohibited.

§ 2 Conclusion of the Agreement

(1) Our proposals shall be non-binding and subject to alteration. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, computations, calculations, referrals to DIN standards), other product descriptions or documents to which we reserve ownership rights and copyrights—including in electronic form.

2) An order of Merchandise by the Buyer would be deemed a binding contractual proposal. Unless otherwise specified in the order, we shall have the right to accept this contractual proposal within 14 days of receipt.

3) It may be accepted either in writing (e.g., via an order confirmation) or by delivering the Merchandise to the Buyer.

§ 3 Delivery period and delivery delay

(1) The delivery period shall be individually stipulated and/or we shall provide it upon accepting the order. If this is not the case, the delivery period shall be approx. 4 weeks after conclusion of the Agreement.

(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (unavailability of the service), we shall immediately inform the Buyer about it and simultaneously inform them of the expected, new delivery period. If the service is not available within the new delivery period either, we shall have the right to withdraw entirely or partially from the Agreement; we shall immediately refund any consideration that we have already received from the Buyer. For instance, non-availability of the service would be the case if our suppliers were unable to deliver to us on time, if we have concluded a congruent hedging transaction, if there are other disruptions in the delivery chain, e.g., due to force majeure, or if we are not obligated to procurement in the particular case. Force majeure shall always be deemed to exist if an unavoidable and unforeseen, external damage-causing event occurs after signing the Agreement, which can neither be averted nor neutralized even upon exercising the required care. This shall particularly include, but not be limited to, the following events, which significantly affect and/or block mainly international or national trade routes (e.g., blockage/closure of ports, non-transit through key areas of international maritime trade such as the Suez Canal/Panama Canal):

a) Natural catastrophes such as volcanic eruptions, storms, floods, earthquakes, etc.

b) Wars, terrorist attacks, riots, boycotts, blockades, etc.

c) Strikes, material shortages, epidemics (lockdowns), etc.

(3) Otherwise, the start of our delivery delay shall be determined according to legal stipulations. In any case, however, the Buyer is required to send a reminder. Should we experience a delivery delay, then the Buyer may request a lump-sum payment of damages due to the delay. The lump-sum compensation for each completed calendar week of the delay shall be 0.5% of the net price (delivery value) but shall not be greater overall than 5% of the delivery value of the Merchandise that is delivered late. We reserve the right to request proof that the Buyer has suffered no losses or only far less losses than the aforementioned lump sum.

(4) The rights of the Buyer according to § 8 of these GTS and our legal rights, particularly during an exemption of the obligation to perform a service (e.g., due to impossibility or non-feasibility of the service and/or rectification) shall remain unaffected.

§ 4 Delivery, transfer of risk, acceptance, default in acceptance

(1) The delivery shall be made from the warehouse, which is also the place of fulfillment for the delivery and any rectification. The Merchandise shall be sent to another destination at the Buyer’s request and expense (sales shipment). Unless otherwise stipulated, we shall have the right to determine the type of shipment (particularly the transport company, shipping route, packaging) ourselves.

(2) The risk of accidental loss and degradation of the Merchandise shall be transferred to the Buyer no later than upon delivery. During the sales shipment, however, the risk of accidental loss and degradation of the Merchandise and the risk of delay shall be transferred to the shipper, the freight forwarder, or the person or entity which has otherwise been designated to perform the delivery as soon as the Merchandise is delivered. Once acceptance has been stipulated, then this shall be crucial for the transfer of risk. The legal stipulations of the German Labor Contracts Law (Werkvertragsrecht) shall otherwise apply accordingly for a stipulated acceptance. Delivery and/or acceptance shall likewise be deemed applicable if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, neglects an obligation to cooperate, or should our delivery experience delays due to other reasons for which the Buyer is responsible, then we shall have the right to demand compensation for the resulting loss including additional expenses (e.g., warehouse costs). To that end, we shall calculate a lump-sum compensation of € 250.00 per calendar day, starting with the delivery period or – in the absence of a delivery period – starting with the notification of the Merchandise’ readiness for shipment. We shall reserve the right to substantiate greater damage and to our legal claims (particularly compensation of additional expenses, reasonable damages, termination); however, the lump sums must be offset against further monetary claims. The Buyer shall be permitted to furnish proof that we have suffered no losses at all or losses that are far less than the aforementioned lump sum.

§ 5 Prices and payment terms

(1) Unless otherwise individually stipulated, our latest prices—specifically ex works—at the time of Agreement conclusion plus statutory VAT shall apply. Any packaging costs are included in the specified prices, except for transportation costs. If the Merchandise transportation costs from the factory to our warehouse have demonstrably increased (in the case of direct delivery to the Buyer) at the time of delivery due to the force majeure circumstances specified under § 3 (2) a) – c) compared to the time at which the proposal was drafted, the price shall change by precisely this price increase. In this case, we shall merely pass on the actual cost increase from our transportation company.

(2) In the case of a sales shipment (§ 4 (1)), the Buyer shall bear the ex works shipping costs and the costs of any shipping insurance that the Buyer may desire. We shall bear the packaging costs. Unless we actually invoice the actual shipping costs incurred in the specific case, a lump-sum shipping fee (excluding shipping insurance) of € 6.50 shall be deemed to be stipulated. This lump-sum shall apply only for shipments within Germany. The Buyer shall be responsible for any tolls, fees, taxes, and other public charges.

(3) The purchase price shall be due and payable within 14 days as of invoicing and delivery and/or acceptance of the Merchandise. However, as part of an ongoing business relationship, we shall always have the right to make a delivery partially or entirely against prepayment only. We shall make the appropriate reservation no later than with the order confirmation.

(4) The Buyer shall be in default if the aforementioned payment period shall lapse. Default interest shall accrue on the purchase price at the latest, applicable interest rate during the arrears. We reserve the right to assert additional payment of damages due to the default. Our claim to commercial default interest against merchants (§ 353 German Commercial Code [HGB]) shall remain unaffected.

(5) The Buyer shall be entitled to a right of retention or right of offset only to the extent that their claim has been legally established or uncontested. For defects in the delivery, the Buyer’s opposing rights, particularly as per § 7 (6) sentence 2. of these GTS, shall remain unaffected.

(6) If, after concluding the Agreement, it becomes apparent (e.g., due to an application for the opening of insolvency proceedings) that our claim to the purchase price shall become jeopardized due to the Buyer’s lack of solvency, we shall have the right to refuse the service according to statutory regulations and—where applicable after setting the date—to withdraw from the Agreement (§ 321 BGB).

§ 6 Retention of title

(1) We shall reserve the right to retain title of the sold Merchandise until all our current and future receivables arising from the Purchase Agreement and an ongoing business relationship (secured claims) have been fully paid.

(2) Until the secured claims have been paid in full, the Merchandise under retention of title may neither be pledged to third parties nor assigned as collateral. The Buyer must immediately notify us in writing if an application for opening an insolvency proceeding is opened or if third parties obtain access to the Merchandise belonging to us (e.g., seizures).

(3) Should the Buyer violate the Agreement, particularly in case of non-payment of the purchase price due, we shall have the right to withdraw from the Agreement according to statutory regulations and/or demand the Merchandise based on the retention of title. A demand does not equal a declaration of withdrawal; rather, we shall have the right to solely demand the Merchandise and reserve the right of withdrawal. Should the Buyer fail to pay the purchase price due, we may assert these rights only if we have previously and unsuccessfully set a reasonable payment deadline for the Buyer or if setting such a deadline is unnecessary according to statutory regulations.

(4) Until further notice as per (c) below, the Buyer shall be authorized to resell and/or process the Merchandise under retention of title in the ordinary course of business. In this case, the following provisions shall additionally apply.

a. The retention of title shall extend to the products—at their full value—created by processing, mixing, or combining our Merchandise, and we shall be deemed the manufacturer. Should the third-party’s rights of ownership remain if the Merchandise is processed, mixed, or combined with the third-party Merchandise, then we shall obtain co-ownership of the processed, mixed, or combined Merchandise in the proportion of its invoice value. Otherwise, the same conditions as for the Merchandise delivered under retention of title shall apply for the created product.

b. The Buyer shall hereby transfer the receivables from third parties resulting from the resale of the Merchandise or the product, in their entirety or in the amount of any co-ownership percentage that we may have according to the aforementioned paragraph, to us as collateral, and we shall accept the transfer. The Buyer’s duties specified in Para. 2 shall also apply regarding the transferred receivables.

c. Besides we, the Buyer shall remain authorized to collect the receivables. We shall undertake to refrain from collecting the receivables if the Buyer fulfills their payment obligations towards us, there are no deficiencies in their financial capacity, and we do not assert the retention of title by exercising a right pursuant to Para. 3. However, should this be the case, we may demand that the Buyer inform us about the transferred receivables and their debtors, provide all the information required for collection, deliver the related documents, and inform the debtors (third parties) about the transfer. In this instance, we shall furthermore have the right to revoke the Buyer’s authorization to resell and process the Merchandise under retention of title. d. If the realistic value of the securities of our claims increases by more than 10%, we shall issue securities of our choice as per the Buyer’s request.

§ 7 The Buyer’s claims for defects

(1) Unless otherwise stipulated below, the legal stipulations apply for the Buyer’s rights in case of material defects and defects in title (including incorrect and shortfall in delivery as well as improper assembly/installation or faulty instructions). In any case, legal provisions regarding the sales of consumer goods (§§ 474 ff. BGB) and the Buyer’s rights arising from separately issued guarantees—particularly from the manufacturer—shall remain unaffected.

(2) The primary basis for our liability for defects shall be the agreement reached regarding the quality and required use of the Merchandise (including accessories and instructions). In this regard, the quality agreement shall be deemed any product descriptions and manufacturer information that are the subject of the individual Agreement or that we have publicly issued at the time of Agreement conclusion (particularly in catalogs or on our internet homepage). Unless an agreement on the quality has been made, then the existence of a defect must be evaluated based on legal regulations (§ 434 Para. 3 BGB). The manufacturer’s public statements or statements made on their behalf, particularly in advertising or on the Merchandise’ labels, shall take precedence over the statements of other third parties.

(3) Generally, we shall not be liable for defects that the Buyer is aware of upon concluding the Agreement or is not aware of due to gross negligence (§ 442 BGB). Furthermore, the Buyer is required to have met their statutory duties of inspection and notification (§§ 377, 381 HGB) to receive their claims for defects. An inspection must always be performed directly before processing in the case of Merchandise that is designed for installation or other subsequent processing. If a defect should surface during delivery, the inspection, or anytime afterwards, we must be immediately informed thereof in writing. In any case, obvious defects must be reported within seven business days after delivery and defects that were not identifiable during inspection must be reported in writing within the same time period upon discovery. Should the Buyer fail to properly inspect and/or report the defect, we shall not be liable for the unreported defect and/or defect that has been reported late or improperly according to statutory regulations. In the case of Merchandise that is designed to be integrated, affixed, or installed, this shall also apply if the defect was discovered as a result of infringing one of these obligations only after performing the corresponding processing; in this case, the Buyer shall not have any particular claims to reimbursement for the corresponding costs (“Removal and installation costs”).

(4) If the delivered product is defective, then we can initially decide if we can provide a remedy by eliminating the defect (rectification) or by delivering a flawless product (replacement delivery). If the type of remedy that we have selected is unreasonable for the Buyer , then they may refuse. Our right to refuse remedy according to statutory provisions shall remain unaffected.

(5) We shall have the right to make the owed remedy contingent on the Buyer paying the due purchase price. However, the Buyer shall have the right to retain a reasonable portion of the purchase price in proportion to the defect.

(6) The Buyer must give us the time and opportunity required to perform the owed remedy, particularly surrender the Merchandise that was the subject of the complaint for verification purposes. In the case of a replacement delivery, the Buyer must return to us the defective product at our request and in accordance with statutory requirements; however, the Buyer shall not have a claim to repayment.

(7) If there is an actual defect, then we—according to statutory provisions and these GTS—shall reimburse the expenses required for verification and remedy, particularly shipping, road, work, and material costs. Otherwise, we may demand that the Buyer reimburse the costs incurred due to the unwarranted request for rectifying the defect if the Buyer knew or could have identified that there is actually no defect.

(8) In urgent cases, such as endangerment of operational security or to avert disproportionate damage, the Buyer shall have the right to remedy the defect themselves and to request from us the expenses that are objectively required to do so. The Buyer must immediately notify us, preferably in advance, of any such measure that they undertake on their own. There shall be no right to take independent action if we had the right to deny the appropriate remedy in accordance with statutory requirements.

(9) If a reasonable remedy deadline to be set by the Buyer has lapsed without success or is unnecessary according to statutory regulations, then the Buyer may, in according to statutory regulations, withdraw from the Purchase Agreement or reduce the purchase price. However, there shall be no right of withdrawal in the case of an insignificant defect.

(10) The Buyer shall have no claims to reimbursement of expenses as per. § 445a para. 1 BGB, unless the last Agreement in the supply chain is a purchase of consumer goods (§§ 478, 474 BGB) or a consumer contract concerning the provision of digital products (§§ 445c pg. 2, 327 para. 5, 327u BGB). The Buyer’s claims to compensation of damages or futile expenses (§ 284 BGB) shall also exist for defects of Merchandise only according to the provisions of §§8 and 9 below.

§ 8 Other liability

(1) Unless otherwise stated in these GTS including the following provisions, we shall be liable for contractual and non-contractual liabilities according to statutory obligations in case of an infringement.

(2) We shall be liable for compensation for damages—for whatever legal reason—as part of fault-based liability in case of intent and gross negligence. In the case of simple negligence, we shall be liable—subject to statutory limitations of liability (e.g., care in one’s own affairs, negligible violation of obligation)—only in the following cases:

a) For damages arising from injury to life, limb, or health,

b) For damages due to the infringement of a significant contractual obligation (obligation whose fulfillment makes it possible to properly execute the Agreement in the first place and on whose compliance the contractual partner regularly relies upon); in this case, however, our liability shall be limited to the reimbursement of foreseeable, typically occurring damages.

(3) The limitations of liability derived from para. 2 shall also apply to third parties and to breaches of obligations by persons (including to their benefit), for whom we must assume responsibility according to statutory obligations. They shall not apply, If a fault has been fraudulently concealed or a guarantee on the quality of the Merchandise has been taken over and for the Buyer’s claims according to the Product Liability Act (Produkthaftungsgesetz).

(4) In the event of a breach of duty that does not constitute a defect, the Buyer may withdraw or cancel only if we are at fault for the breach of duty. The Buyer shall not have a free right of termination (particularly according to §§ 650, 648 BGB). Otherwise, the statutory requirements and legal consequences shall apply.

§ 9 Statute of limitations

(1) In derogation from § 438 (1) no. 3 BGB, the general statute of limitations for claims arising from material defects and defects in title shall comprise one year after delivery. If an acceptance has been stipulated, then the statute of limitations shall begin with acceptance.

(2) If the Merchandise is a structure or an object that has been used in accordance with its usual purpose for a structure and which has resulted in its deficiency (construction material), the statute of limitations as per legal provisions shall comprise 5 years after delivery (§ 438 (1) no. 2 BGB). Additional special statutory rules on the statute of limitations shall also remain unaffected (particularly § 438 (1) no. 1, (3), §§ 444, 445b BGB).

(3) The aforementioned statute of limitations for the purchasing right shall also apply to contractual and non-contractual claims for damages by the Buyer that are based on the Merchandise’ defects, unless application of the regular statutory statute of limitations (§§ 195, 199 BGB) would result in a shorter statute of limitations in the particular case. The Buyer’s claims for compensation as per § 8 (2) pg. 1 and pg. 2(a) and according to the Product Liability Act (Produkthaftungsgesetz) shall expire solely according to the statutory statute of limitations.

§ 10 Choice of law and place of jurisdiction

(1) The laws of the Federal Republic of Germany excluding international uniform law, particularly the UN Sales Law, shall apply for these GTS and the contractual relationship between us and the Buyer.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code [Handelsgesetzbuch], a legal entity under public law, or a public-law special fund, then the exclusive place of jurisdiction—including internationally—for any disputes that arise directly or indirectly from this contractual relationship shall be our company headquarters in Winsen (Luhe). The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, in any case, we shall also have the right to file a suit at the place of fulfillment of the delivery obligation as per these GTS or as per an overriding, individual agreement or at the Buyer’s place of general jurisdiction. Overriding statutory laws, particularly those relating to exclusive places of jurisdiction, shall remain unaffected.