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1.3 General Terms and Conditions in legal transactions with companies, legal persons under public law and quasi-autonomous special public entities

Section 1 Scope, form

(1) These General Sales Conditions (GSC) apply to all our business relationships with our customers (“Purchasers”). The GSC only apply if the Purchaser is a businessperson (Section 14 BGB), legal person under public law or a quasi-autonomous special public entity.

(2) The GSC apply in particular to agreements for the sale and/or delivery of movable items (“Merchandise”), without regard to whether we manufacture the Merchandise ourselves or purchase it from suppliers (Sections 433, 650 BGB). If nothing to the contrary is agreed, the GSC apply in the version applicable at the point in time of the Purchaser’s order or in any case the last version notified to them in text form as a framework agreement, including to future agreements of the same kind, without any necessity for us to refer to the GSC again in each individual case.

(3) Our GSC apply exclusively. Any varying, contradictory or supplementary general terms and conditions of the Purchaser shall only become constituents of an agreement if we have explicitly agreed to their validity. This requirement for our agreement applies in every case, for example, including if the Purchaser refers to their GTC within the scope of an order and we do not explicitly object to this.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and disclosures in our order confirmation take precedence over the GSC. In case of doubt trade terms shall be interpreted as per the Incoterms® published by the International Chamber of Commerce in Paris (ICC) in the version applicable on the conclusion of the agreement.

(5) Legally-relevant declarations and notifications of the Purchaser with regard to the agreement (e.g. setting deadlines, reporting defects, withdrawal or reduction) must be given in writing. The written form in accordance with these GSC includes written and text form (e.g. letter, email, fax). Statutory form regulations and other supporting documents, in particular in the event of any doubt with regard to the legitimation of the declaring party, remain unaffected.

(6) Any references to the applicability of statutory regulations are for the purposes of clarification only. As a result, even without such a clarification, statutory regulations apply, if these are not directly amended in these GSC or are explicitly excluded.

Section 2 Conclusion of an agreement

(1) Our tenders are subject to alteration and are non-binding. This also applies if we have provided to the Purchaser catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve property rights and copyright.

(2) An order for the Merchandise placed by a Purchaser shall be deemed to be a binding offer to contract. If nothing to the contrary results from an order, we are entitled to accept this offer to contract within fourteen (14) days of receipt by us.

(3) Such acceptance may be declared either in writing (e.g. by an order confirmation) or by delivering the Merchandise to the Purchaser.

Section 3 Delivery deadline and delay in delivery

(1) The delivery deadline shall be agreed individually or shall be given by us on acceptance of the order.

(2) If we cannot meet binding delivery deadlines on grounds for which we are not responsible (non-availability of the performance), we shall inform the Purchaser of this without delay and simultaneously notify them of the likely new delivery deadline. If the performance is also not available within the new delivery deadline, we shall be entitled to withdraw from the agreement in full or in part; we shall refund any consideration already provided by the Purchaser without delay. For example, the performance is not available in the event of non-punctual self-delivery by our suppliers, if we have concluded a congruent hedging transaction, in the event of any other disruptions in the supply chain such as due to force majeure, customs inspection or other external influence, or in the individual case we are not obliged to procure.

(3) The occurrence of our delay in delivery shall be determined in accordance with statutory regulations. However, a reminder from the Purchaser is required in every case. If we fall into a delay in delivery, the Purchaser may demand flat-rate compensation for their loss caused by the delay. The flat-rate loss shall be 0.5% of the net price (delivery value) for each completed calendar week, however, a maximum of 5% of the delivery value of the Merchandise delivered late in total. We reserve the right to prove that the Purchaser did not suffer any loss or only a materially lower loss than that of the preceding flat-rate sum.

(4) The rights of the Purchaser as per Section 8 of these GSC and our statutory rights, in particular in the event of any exclusion of the duty to perform (e.g. due to the impossibility or unreasonableness of the performance and/or supplementary performance), remain unaffected.

Section 4 Delivery, transfer of risks, acceptance, default in acceptance

(1) Delivery shall generally be carried out directly ex works in China, which is also the place of performance for the delivery and for any supplementary performance. In exceptions, if the Merchandise is stored in our warehouse in Mainz, our warehouse in Mainz shall be the place of performance for the delivery and for any supplementary performance. On demand, and at the cost of the Purchaser, the Merchandise shall be delivered to a different destination (sales shipment). Insofar as nothing is agreed to the contrary, we are entitled to decide the type of shipment ourselves (in particular the transport company, shipping route, packaging).

(2) The risk of accidental loss and accidental deterioration of the Merchandise passes to the Purchaser on handover at the latest. Handover will be deemed to have been made if the Customer is in default of acceptance. In the case of a sales shipment, however, the risk of accidental loss and the accidental deterioration of the merchandise, as well as the risk of delay, shall be transferred on the delivery of the Merchandise to the carrier, the freight driver or any other person or institution appointed to execute the shipment. The Purchaser is aware that this regularly also involves carriage from abroad. If the Purchaser wishes we shall cover the delivery with goods-in-transit insurance; the costs incurred in this respect shall be borne by the Purchaser.

(3) If the Purchaser falls into default of acceptance, omits to carry out an act of cooperation or if our delivery is delayed on other grounds for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting loss incurred including additional expenses (e.g. storage costs). We charge flat-rate compensation for this of €2.50 per pallet and calendar day, beginning from the delivery deadline or – in the absence of a delivery deadline – from the notification that the Merchandise is ready to ship.
The right to prove a higher loss and statutory claims (in particular refund of additional expenses, appropriate compensation, termination) remains unaffected; however, the flat-rate sum shall be offset with any further monetary claims. The Purchaser may prove that we did not suffer any loss or only a materially lower loss than that of the preceding flat-rate sums.

Section 5 Prices and terms of payment

(1) If nothing to the contrary is otherwise agreed in the individual case, our current prices at the point in time an agreement is concluded, plus VAT, apply.

(2) In the case of sales shipment (Section 4 (1)) the Purchaser shall bear the transport costs and the costs for any goods-in-transit insurance requested by the Purchaser. Any customs duties, fees, taxes and other public levies shall also be borne by the Purchaser.

(3) The purchase price is due and must be paid within fourteen (14) days of the invoice date and delivery or acceptance of the Merchandise. However, within the scope of a current business relationship, we are entitled at any time to carry out a delivery in return for advance payment, in full or in part. We will declare a corresponding reservation with the order confirmation at the latest.

(4) On the expiry of the preceding payment deadline the Purchaser shall fall into arrears. During the period of arrears, the purchase price shall be subject to the applicable statutory interest rate on arrears. We reserve the right to assert claims to any further losses caused by arrears. Our claim to the commercial interest on maturity (Section 353 HGB) from merchants remains unaffected.

(5) The Purchaser shall only be entitled to offsetting or retention rights if their claim has been legally established or is undisputed. In the event of defects to the delivery the reciprocal rights of the Purchaser, in particular as per Section 7 (6) 2 of these GSC, remain unaffected.

(6) If after conclusion of an agreement it becomes recognisable (e.g. due to an application to open insolvency proceedings) that our claim to the purchase price is endangered due to an inability of the Purchaser to perform, in accordance with statutory regulations we shall be entitled to refuse performance and – after setting a deadline, if applicable – to withdraw from the agreement (Section 321 BGB). In the case of agreements for the manufacture of specific items (custom-made products), we may declare withdrawal immediately; statutory regulations with regard to the dispensability of setting a deadline remain unaffected.

Section 6 Retention of title

(1) Until the payment is made in full of all our current and future receivables from the purchase agreement and an ongoing business relationship (secured receivables), we retain title to the sold Merchandise.

(2) Merchandise subject to retention of title must not be pledged to third parties nor assigned as security before payment in full or the secured receivables. The Purchaser must notify us in writing without delay if an application to open insolvency proceedings is made or if third party accesses (e.g. seizures) are made to the Merchandise that belongs to us.

(3) In the event of any conduct of the Purchaser in breach of contract, in particular in the event of non-payment of the due purchase price, we shall be entitled, in accordance with statutory regulations, to withdraw from the agreement and/or to demand the surrender of the Merchandise due to the retention of title. A demand to surrender does not imply a declaration of withdrawal at the same time, instead, we shall be entitled merely to demand the surrender of the Merchandise and shall reserve the right of withdrawal. If the Purchaser does not pay the due purchase price, we may only assert these rights if we had previously set the Purchaser an appropriate deadline for payment or if setting such a deadline is unnecessary in accordance with statutory regulations.

(4) Until any revocation as per (c) the Purchaser is authorised to sell on Merchandise subject to retention of title in the course of orderly business and/or to process the same. In this case the following provisions apply in addition.

(a) Retention of title extends to any products that are created by processing, mixing or compounding our Merchandise to its full value, where we shall be deemed to be the manufacturer. In the event of any processing, mixing or compounding with third-party merchandise, if any third-party property rights remain, we shall acquire co-ownership to the processed, mixed or compounded merchandise in proportion to the invoice amounts. Otherwise, the same applies to the product created as to Merchandise delivered with retention of title.

(b) The Purchaser now assigns as security any receivables from third parties that result from any resale of the Merchandise or the product to us, in total or at the amount of any co-ownership share we have as per the preceding paragraph. We accept the assignment. The Purchaser’s obligations specified in (2) also apply with regard to the assigned receivables.

(c) The Purchaser remains empowered to collect the receivable in addition to us. We are obliged not to collect the receivable as long as the Purchaser meets their payment obligations towards us, there are no impairments to their ability to perform and we have not asserted retention of title by exercising a right as per (3). However, if this is the case, we can also demand that the Purchaser discloses to us the assigned receivables and their debtor, makes all the disclosures required for collection, surrenders the accompanying documents and notifies the debtor (third party) of the assignment. In addition, in this case we shall be entitled to revoke the Purchaser’s authorisation to sell on and process the Merchandise subject to retention of title.

(d) If the realisable value of the securities of our receivables exceeds our receivables by more than 10%, on demand by the Purchaser we shall release securities at our discretion.

Section 7 Claims for defects of the Purchaser

(1) Statutory regulations apply to the rights of the Purchaser in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly/installation or faulty instructions), provided nothing to the contrary is detailed below. In all cases special statutory regulations with regard to reimbursement of expenses remain unaffected in the event of final delivery of the newly-manufactured Merchandise to a consumer (supplier recourse as per Section 478, 445a, 445b and Sections 445c, 327 (5) , 327u BGB), if no compensation was agreed within the scope of a quality assurance agreement.

(2) The basis of our liability for defects is primarily the agreement made with regard to the properties and condition and the assumed use of the Merchandise (including accessories and instructions). All product descriptions and manufacturer disclosures that are the object of the individual agreement or that were publicly disclosed by us (in particular in catalogues or on our website) at the point in time the agreement is concluded shall be deemed to be agreements on the properties and condition in this context. If no properties and condition were agreed, an assessment shall be made in accordance with statutory regulations whether a defect is present or not (Section 434 (3) BGB). Public statements of the manufacturer or those made on their behalf, in particular in advertising or on the label of the Merchandise, shall take precedence over statements made by any third party.

(3) In the case of Merchandise with digital elements or other digital contents we shall only owe any provisions and updates (if applicable) of the digital contents if this explicitly results from an agreement on properties and conditions. In this regard we cannot accept any liability for public statements made by the manufacturer or by any other third party.

(4) We shall not generally be liable for defects that the Purchaser did not recognise on the conclusion of the agreement or did not recognise due to gross negligence (Section 442 BGB). Moreover, defect claims of the Purchaser require that they meet their statutory inspection and notification duties (Sections 377, 381 HGB). If any defect appears on delivery, during an inspection or at any later point in time, we must be notified in writing without delay. In every case any obvious defects must be notified in writing within five (5) working days of delivery and in the event of an inspection within the same deadline from their discovery. If the Purchaser neglects to carry out a proper inspection and/or notification of defects, our liability for defects not reported, not reported punctually or not reported properly shall be excluded in accordance with statutory regulations. In the case of Merchandise intended for assembly, affixing or installation, this also applies if the defect as a result of a breach of one of these duties only became apparent after the corresponding processing; in this case the Purchaser shall not in particular have any claims to the reimbursement of the corresponding costs (“installation and removal costs”).

(5) If a delivered item is defective, we may initially choose whether to provide supplementary performance by rectifying the defect (repair) or by delivering a defect-free item (replacement delivery). If the type of supplementary performance we select is unreasonable for the Purchaser, the Purchaser may reject it. Our right to refuse supplementary performance under statutory pre-conditions remains unaffected.

(6) We are entitled to make the owed supplementary performance dependent on the Purchaser paying the due purchase price. However, the Purchaser is entitled to retain an appropriate part of the purchase price in proportion to the defect.

(7) The Purchaser must give us the necessary time and opportunity for the owed supplementary performance, in particular to surrender the Merchandise subject to complaint for examination purposes. In the case of a replacement delivery the Purchaser shall at our demand return the defective item in accordance with statutory regulations; however, the Purchaser shall have no entitlement to repayment. Supplementary performance does not include the dismounting, removal or deinstallation of the defective item, nor the assembly, affixing or installation of a defect-free item, if we were not originally obliged to provide these performances; claims of the Purchaser to reimbursement of the corresponding costs (“installation and removal costs”) remain unaffected.

(8) We shall bear or reimburse any expenses necessary for the purposes of examination and supplementary performance, in particular transport, travel, working and material costs, as well as any installation and removal costs in accordance with statutory regulations and these GSC, if a defect actually was present. Otherwise, we may demand the reimbursement of any costs incurred from an unjustified demand to rectify defects from the Purchaser, if the Purchaser knew or negligently did not know that no defect actually was present.

(9) In urgent cases, e.g. in the event of a danger to operational safety or to prevent disproportionate damage, the Purchaser has the right to rectify a defect themselves and to demand reimbursement of the expenses objectively necessary for this from us. We must be notified of any such self-remedy of defects without delay, if possible, in advance. There shall be no right to the self-remedy of defects if we had been entitled to refuse supplementary performance in accordance with statutory regulations.

(10) If an appropriate deadline for statutory regulations set by the Purchaser expires fruitlessly or is unnecessary in accordance with statutory regulations, the Purchaser may in accordance with statutory regulations withdraw from the purchase agreement or reduce the purchase price. However, in the event of a minor defect there shall be no right of withdrawal.

(11) Otherwise, any claims of the Purchaser to compensation or to the reimbursement of futile expenses, including for defects only in accordance with Section 8, are excluded.

Section 8 Other liability

(1) If nothing to the contrary results from these GSC, including the following provisions, in the event of a breach of contractual and non-contractual obligations we shall be liable in accordance with statutory regulations.

(2) We shall be liable to pay compensation – regardless of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of minor negligence, we shall be liable, subject to statutory limitations of liability (e.g. duty of care in our own affairs; immaterial breach of obligations), only

a) for losses resulting from death, personal injury or damage to health,

b) for losses resulting from a breach of a material contractual obligation (an obligation the fulfilment of which enables the orderly execution of the agreement at all and compliance with which the contractual partner regularly trusts and may trust); however, in this case our liability is limited to compensation for the loss foreseeable that may typically occur.

(3) The limitations of liability that result from (2) also apply towards third parties as well as in the event of breaches of obligations caused by persons (including in their favour), for whose culpability we are responsible pursuant to statutory regulations. These shall not apply if a defect was fraudulently concealed or a warranty was assumed for the properties and condition of the Merchandise and for claims of the Purchaser pursuant to the German Product Liability Act.

(4) The Purchaser may only withdraw or terminate as a result of a breach of obligations that does not involve a defect if we were responsible for the breach of obligations. A free right of termination of the Purchaser (in particular as per Sections 650, 648 BGB) is excluded. Otherwise, statutory pre-conditions and legal consequences apply.

Section 9 Limitation period

(1) In variance from Section 438 (1) 3 BGB the general period of limitations for claims as a result of material defects and defects of title shall be one year from delivery. If an acceptance is agreed, the period of limitations commences on acceptance.

(2) Further special statutory regulations on the period of limitations (in particular Section 438 (1) 1, (3), Sections 444, 445b BGB) remain unaffected.

(3) The preceding limitation periods of the Purchaser also apply to contractual and non-contractual claims to compensation of the Purchaser that relate to a defect to the Merchandise, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims to compensation of the Purchaser as per Section 8 (2) 1 and 2 (a), as well as pursuant to the German Product Liability Act, shall be subject exclusively to the statutory period of limitations.

Section 10 Choice of law and court of jurisdiction

(1) The law of the Federal Republic of Germany, under the exclusion of international uniform law, in particular UN sales law, applies to these GSC and the contractual relationship between us and the Purchaser.

(2) If the Purchaser is a businessperson in accordance with the German Commercial Code, a legal person under public law or a quasi-autonomous special public entity, the exclusive court of jurisdiction for all disputes resulting directly or indirectly from the contractual relationship is our business address in Mainz – including the international court of jurisdiction. The same applies if the Purchaser is a businessperson in accordance with Section 14 BGB. However, in all cases we are also entitled to file a lawsuit at the place of performance of the delivery obligation as per these GSC or of a precedent individual agreement, or at the general court of jurisdiction of the Purchaser. Precedent statutory regulations, in particular with regard to exclusive responsibilities, remain unaffected.