General Terms and Conditions

in business transaction with entrepreneurs | July 2021

This translation is for convenience only and is not legally binding. The German version shall prevail.

1. Scope, General

1.1 The General Terms and Conditions of Order, Delivery and Performance (AGB) apply to all companies of the METZEN Group (hereinafter also “we/us”), namely:

• METZEN Industries GmbH
• METZEN GmbH
• Metzen S.à r.l.
• Kröger Greifertechnik GmbH & Co KG

1.2 These Terms and Conditions apply exclusively to entrepreneurs within the meaning of § 14 BGB (German Civil Code (BGB)), i.e. natural or legal persons or partnerships who enter the contract for purposes relating to their trade, business or profession.

1.3 For the business relationship with our customers, including for information and advice, only the following terms and conditions shall apply. If these Terms and Conditions have been incorporated into the transaction with the customer, they shall also apply to all further business relationships between the customer and us, unless expressly agreed otherwise.

Deviating general terms and conditions of the buyer and/or ordering party – hereinafter referred to as “Customer(s)” – shall apply only if and to the extent that we expressly acknowledge them; otherwise, they are rejected. Our silence regarding such deviating general ts and conditions shall not be deemed acknowledgement or consent, including for future contracts.

These Terms and Conditions shall apply instead of any of the Customer’s general terms and conditions, in particular the Customer’s purchasing terms and conditions (EKB), even if, according to such purchasing terms, acceptance of the order is deemed to constitute unconditional acceptance of those terms, or if we perform delivery or services after the Customer has referred to the applicability of its purchasing terms, unless we have expressly waived the applicability of these Terms and Conditions in writing or in text form.

The exclusion of the Customer’s general terms and conditions shall also apply if these Terms and Conditions do not contain a separate provision on individual points governed by the Customer’s general terms and conditions.

1.4 If framework agreements or other contracts have been concluded with our Customers, such agreements shall take precedence. Unless more specific provisions are agreed therein, they shall be supplemented by these Terms and Conditions.

1.5 Where reference is made below to claims for damages, this shall equally include claims for reimbursement of expenses within the meaning of § 284 BGB.

2. Product and service characteristics / Assumption of guarantee / Customer’s cooperation obligations

2.1 Product specifications agreed with the Customer conclusively define the characteristics owed. No further characteristics of the item supplied or of our services affected thereby are owed, such as suitability for the intended purpose disclosed by the Customer or customary characteristics of such products.

2.2 A fault-independent guarantee shall be deemed assumed by us only if we have expressly designated a characteristic and/or a performance result as “legally guaranteed”.

2.3 Outside mandatory statutory liability, we do not assume liability for the usability and/or registrability and/or marketability of our products or services for the use intended by the Customer, unless we have expressly agreed otherwise with the Customer. Clause 11 remains unaffected.

2.4 As a material cooperation obligation, the Customer is obliged to provide us with all information and data required for performance in a timely and complete manner and to perform all cooperation acts within its sphere in good time and free of charge, so that we can perform our services in accordance with the contract. This includes the timely procurement of any required official permits for the service and the timely communication to us of any permit conditions required for contract-compliant performance.

3. Samples / Documents and data provided / Specimens / Cost estimates

3.1 The characteristics of specimens or samples shall become part of the contract only if expressly agreed. The Customer is not entitled to exploit or pass on samples.

If a sale is concluded on the basis of a demonstration unit or sample, deviations in the delivered goods shall be permitted and shall not entitle the Customer to raise objections or claims against us, unless expressly agreed otherwise, provided that such deviations do not have a lasting impact on the use normally envisaged for the delivered goods and any agreed specifications are complied with by the delivered goods.

3.2 We reserve all ownership and copyright rights in samples, illustrations, images, photos, drawings, data, cost estimates and other documents relating to our products and services that are disclosed to or provided to the Customer. The Customer undertakes not to make the samples, data, photos and/or documents listed in the preceding sentence accessible to third parties unless we give our express consent.

Upon request, the Customer shall return them to us without delay if an order based on them is not placed with us. This shall apply unless the Customer’s right to retain the aforementioned items and/or data is otherwise contractually regulated in favour of the Customer.

Sentences 1 and 2 shall apply accordingly to documents, drawings or data of the Customer; however, we may make these accessible to such third parties to whom we permissibly transfer contract-related deliveries and/or services with the Customer, or whom we use as vicarious agents or suppliers

3.3 Our cost estimates shall be binding only if they are expressly designated as binding and if work on the services contained therein is commenced on a contractual basis immediately after the cost estimate has been received by the Customer.

4. Conclusion of contract / Scope of supply and services / Software / Procurement risk and guarantee

4.1 Our offers are non-binding unless they are expressly marked as “binding” or contain expressly binding commitments or unless binding effect has otherwise been expressly agreed with the Customer. They constitute invitations for the Customer to place orders and do not constitute a binding offer on our part.

If the Customer is positively listed in official embargo lists or if the Customer breaches relevant embargo provisions, we are entitled to discontinue contract negotiations without liability and to withdraw without liability from the unperformed part of contracts already concluded.

The Customer is bound by its order as an offer to contract for 14 calendar days – for electronic orders 5 business days (in each case at our registered office) – after receipt of the order by us, unless the Customer must regularly expect later acceptance by us (§ 147 BGB). This also applies to repeat orders by the Customer.

4.2 A contract shall only be concluded – including in ongoing business relations – once we have confirmed the Customer’s order by order confirmation in writing or in text form (e.g. fax or email). If delivery or performance takes place within the Customer’s binding period stated in the offer, our order confirmation may be replaced by our delivery/performance, whereby dispatch of the delivery/provision of the service shall be decisive.

The order confirmation shall only apply subject to the condition that any outstanding payment arrears of the Customer are settled and that a credit check carried out by us and any check we may carry out regarding a negative export-control entry in a relevant embargo list does not produce any adverse result.

If delivery or performance takes place within the offer’s binding period, our order confirmation may be replaced by our delivery/performance, whereby dispatch/provision shall be decisive.

4.3 The Customer must inform us in due time before conclusion of the contract, in writing or in text form, of any special requirements for our products. However, such information shall not extend our contractual obligations and liability.

4.4 Unless otherwise expressly agreed, we are only obliged to deliver the ordered products as goods that are marketable and capable of approval in the Federal Republic of Germany.

4.5 We are only obliged to perform from our own stock.

4.6 The assumption of a fault-independent, guarantee-like procurement risk within the meaning of § 276 BGB or a procurement guarantee is not contained solely in our obligation to deliver an item determined only by type.

4.7 We assume such a procurement risk within the meaning of § 276 BGB only by virtue of an express, separate agreement using the wording “we assume the procurement risk…”.

4.8 If acceptance of the products or their dispatch, or acceptance of our services, is delayed for a reason for which the Customer is responsible, we are entitled, after setting and expiry of a 14-day grace period, at our discretion, to demand immediate payment of remuneration or to withdraw from the contract or to refuse performance and to claim damages in lieu of performance of the entire obligation. The setting of the period must be in writing or in text form.

We do not have to expressly refer again to the rights arising from this clause.

In the event of the above-mentioned claim for damages, the damages payable shall amount to 20% of the net delivery price for purchase contracts or 20% of the agreed net remuneration for service contracts. The Customer reserves the right to prove significantly lower damage (more than 10% lower). The above provisions do not entail a reversal of the burden of proof.

4.9 If dispatch is delayed at the Customer’s request or for reasons for which the Customer is responsible, we are entitled, beginning with expiry of the reasonable period set in the notice of readiness for dispatch in writing or in text form, to store the goods at the Customer’s risk of loss and deterioration and to invoice the resulting costs at 0.5% of the net remuneration for the stored goods for each commenced week.

The stored goods will be insured only at the Customer’s special request. The assertion of further rights remains unaffected. The Customer reserves the right to prove that significantly lower (more than 10% lower) costs were incurred.

In addition, after expiry of the period pursuant to clause 4.8 Satz 1 (sentence 1), we are entitled to otherwise dispose of the contract goods and to supply the Customer anew within a reasonable period (= original delivery period plus a 7 calendar day scheduling period).

4.10 In the event of a late delivery instruction or call-off by the Customer, we are entitled to postpone delivery by the same period as the Customer’s delay plus a scheduling period of 4 business days at the location of our registered office.

If a call-off purchase (e.g. for spare parts) is concluded, the Customer’s individual call-offs must be received by us at least 6 weeks before the desired delivery date, unless a shorter call-off or delivery period has been expressly agreed. Unless expressly agreed otherwise, the Customer is obliged to accept the purchased goods in full within one year of receipt of the order confirmation.

If call-offs are not made in due time, we are entitled to remind the Customer of the call-offs and their scheduling and to set an additional period of 14 calendar days for call-off and scheduling, which must provide for acceptance within 4 weeks after receipt of our request. If the period expires without result, we are entitled to withdraw from the contract or to claim damages in lieu of performance. We do not have to expressly refer again to the rights arising from this clause. Clause 4.8 (2) applies accordingly.

4.11 Operating instructions/user information for our products and a product label are owed only – unless expressly agreed otherwise in writing or in text form or if we are subject to deviating statutory regulation – in German or, at our discretion, in English.

4.12 We reserve the right to amend the specification of the goods insofar as statutory requirements make this necessary, provided that this change does not result in any deterioration in quality and usability for the customary purpose and, where suitability for a specific purpose has been agreed, for that purpose.

4.13 We are further entitled to deliver products with customary trade deviations in quality, dimensions, weight, colour and equipment. Such goods shall be deemed conforming to the contract.

4.14 If the item supplied contains software or consists of software, the Customer shall receive only a simple, irrevocable, non-exclusive right of use for the purpose of using the item supplied or the software. The Customer is entitled to sublicense this right of use solely for the purpose of the intended use of the item supplied if it sells or otherwise transfers the item supplied to third parties.

4.15 If the item supplied contains software, the Customer shall have no entitlement to receive the source code of the software unless expressly agreed otherwise. The forgoing shall not apply insofar as we do not declare our willingness, in the event that maintenance and/or fault rectification of the software is necessary, to do so on customary market terms. In this case, the Customer shall be entitled to provision of the source code, but solely for the purpose of maintenance and fault rectification.

4.16 If the item supplied contains software, the Customer is not entitled to reverse engineer the software as long as we declare our willingness to remedy defects or to maintain the item supplied on customary market terms.

5. Delivery / Place of performance / Delivery time / Delay in delivery / Packaging

5.1 Binding delivery dates and periods must be expressly agreed. For non-binding or approximate (approx., about, etc.) delivery dates and periods, we will endeavour to comply to the best of our ability.

5.2 Delivery and/or performance periods shall commence upon receipt of our order confirmation by the Customer; if none is issued, 3 business days at our registered office after receipt of the Customer’s order by us and our acceptance thereof, but not before all details of execution of the order have been clarified and all other prerequisites to be fulfilled by the Customer have been met, in particular agreed advance payments or securities and necessary cooperation services by the Customer have been provided in full.

The same applies to delivery dates and performance dates. If the Customer requests changes after the order has been placed, a new reasonable delivery and/or performance period shall begin with our confirmation of the change. “Reasonable” means a delivery period equal to the originally remaining delivery period plus the duration of the change negotiations and a scheduling period of 14 calendar days.

5.3 If we are in delay of delivery, the Customer must first set us a reasonable additional period of at least 14 calendar days for performance. If this expires without result, claims for damages due to breach of duty – for whatever reason – shall exist only in accordance with Clause 11.

5.4 We shall not be in default as long as the Customer is in default with the fulfilment of obligations owed to us, including those arising from other contracts.

5.5 When unloading and returning the goods, the Customer must assist our staff and/or our vicarious agents if this is necessary and technically and logistically reasonable for the Customer. If an obligation to deliver has been agreed, unloading of the goods is the Customer’s responsibility and shall be at its expense.

5.6 If no collection date is specified in the order which we have confirmed or must confirm in order for it to become binding, or if acceptance does not take place on the agreed collection date, we shall, at our discretion, dispatch the contract goods via a freight forwarder appointed by us or store the contract goods at the Customer’s expense.

We will charge the Customer additionally for the packaging, transport and insurance costs incurred (the latter insofar as transport insurance has been agreed) in the event of dispatch.

In the absence of any other agreement, we will take back packaging only on the basis and to the extent of statutory obligations.

5.7 In the event of storage, the Customer shall pay a storage fee of 0.5% of the net remuneration per week for the stored goods. The Customer reserves the right to prove that significantly lower (more than 10% lower) costs were incurred.

6. Force majeure / Self-supply

6.1 If, for reasons for which we are not responsible, we do not receive, do not receive correctly or do not receive in due time deliveries or services from our sub-suppliers for the performance of our contract deliveries or services owed – despite proper and sufficient cover prior to conclusion of the contract with the Customer corresponding to the quantity and quality of our delivery/service agreement with the Customer, i.e. in such a way that, upon fulfilment of the upstream supply obligation towards us, we can fulfil the contract with the Customer by type of goods, quantity of goods and delivery time and/or service (congruent cover) – or if force majeure events of not insignificant duration occur (i.e. lasting more than 14 calendar days), we will inform our Customers without delay in writing or in text form. In this case, we are entitled to postpone delivery for the duration of the impediment or to withdraw in whole or in part from the contract with respect to the unperformed part, provided that we have complied with the above information obligation and have not assumed the procurement risk within the meaning of § 276 BGB or a delivery guarantee.

Force majeure shall include pandemics (including the COVID-19 pandemic), epidemics, strikes, lockouts, official interventions, energy and raw material shortages, transport bottlenecks or obstacles for which we are not responsible, operational disruptions for which we are not responsible – e.g. due to fire, water and machinery damage – and all other impediments which, from an objective perspective, have not been caused by us culpably.

With the above release from performance, our obligation to pay damages and/or penalties due to a delay in delivery/performance shall also lapse.

6.2 If a delivery date or delivery period has been agreed as binding and, due to events under Clause 6.1, the agreed delivery date or delivery period is exceeded, the Customer is entitled, after fruitless expiry of an additional period of 14 calendar days, to withdraw from the contract with respect to the unperformed part. Further claims of the Customer, in particular claims for damages, are excluded in this case.

6.3 The above provision pursuant to Clause 6.2 applies accordingly if, for the reasons stated in Clause 6.1, even without contractual agreement of a fixed delivery date, continued adherence to the contract is objectively unreasonable for the Customer.

7. Transfer of risk / Acceptance

7.1 Unless expressly agreed otherwise with the Customer, delivery shall be Ex Works Incoterms 2020. In the case of collection obligations and dispatch obligations, the goods shall travel uninsured at the Customer’s risk and expense unless expressly agreed otherwise.

7.2 If dispatch has been agreed and unless otherwise agreed, we reserve the right to choose the transport route and means of transport. However, we will endeavour to take the Customer’s wishes regarding the type and route of shipment into account, without the Customer having any entitlement thereto. Any additional costs resulting from this – including in the case of freight-paid delivery – shall be borne by the Customer, as shall the transport and insurance costs.

If dispatch is delayed at the Customer’s request or due to the Customer’s fault compared to the agreed date, we will store the goods at the Customer’s expense and risk. Clause 5.7 applies accordingly. In this case, the notice of readiness for dispatch shall be equivalent to dispatch.

7.3 The risk of accidental loss or accidental deterioration shall pass, in the case of an agreed collection obligation, upon handover of the products to be delivered to the Customer; in the case of an agreed dispatch obligation, upon handover to the freight forwarder, carrier or other companies designated to carry out the shipment, but no later than upon leaving our works or our warehouse, our branch, or the manufacturer’s works, to the Customer.

The above also applies where a partial delivery is agreed. In the case of an agreed obligation to deliver, risk shall pass upon making the goods available for unloading at the agreed place of delivery.

7.4 If shipment is delayed because we exercise our right of retention due to the Customer’s complete or partial default in payment, or for any other reason for which the Customer is responsible, risk shall pass to the Customer at the latest from the date of dispatch of the notice of readiness for shipment and/or performance to the Customer.

7.5 If a contract for work/works performance is agreed, the Customer undertakes to accept it without delay after we notify readiness for acceptance. If the Customer uses the works performance commercially for more than 14 days outside an agreed functional test, it shall be deemed accepted. Refusal of acceptance due to insignificant defects (= those which do not impair the technical function of the product owed) is excluded.

8. Defect notification / Breach of duty in the form of defective performance due to defects in quality (warranty)

8.1 Obvious defects in the delivered goods must be notified by the Customer to us without delay, but at the latest 12 calendar days after collection in the case of delivery ex works or ex warehouse; otherwise after delivery; hidden defects without delay after discovery; concealed defects at the latest within the limitation period for warranty claims under Ziff. 8.6, in writing or in text form.

Failure to notify defects in due time or in the required form shall exclude any claim by the Customer for breach of duty due to defects. This shall not apply in the event of intentional, grossly negligent or fraudulent conduct on our part, in the event of injury to body, life or health, or assumption of a guarantee of freedom from defects, or assumption of a procurement risk pursuant to § 276 BGB within the meaning of Clause 4.6, or other mandatory statutory liability, and in the case of recourse claims in the supply chain (§§ 478, 445a BGB).

8.2 Obvious defects that are recognisable upon delivery must also be reported to the delivering transport company, and the Customer must arrange for the transport company to record the defects in writing or in text form on site. Failure to arrange for such recording of the defect notification in due time or in the required form to the delivering transport company shall exclude any claim by the Customer for breach of duty due to defects. Clause 8.1 (3) applies accordingly.

Insofar as quantity and weight defects were already recognisable upon delivery under the above inspection obligations, the Customer must complain about these defects to the delivering transport company upon receipt of the goods and have the complaint confirmed in writing or in text form.

Failure to complain in due time to the transport company or failure to obtain confirmation in due form from the transport company shall likewise exclude any claim by the Customer for breach of duty due to defects.

This shall not apply in the event of fraudulent, intentional or grossly negligent conduct on our part, in the event of injury to body, life or health, assumption of a guarantee of freedom from defects, assumption of a procurement risk pursuant to § 276 BGB within the meaning of Clause 4.6, or liability due to mandatory statutory liability, and in the case of recourse claims in the supply chain (§§ 478, 445a BGB).

8.3 Upon commencement of processing, machining, combining or mixing with other items, the delivered products shall be deemed approved by the Customer as conforming to the contract. The same applies in the event of onward shipment from the original place of destination insofar as this does not correspond to the customary use of the delivered goods.

8.4 Other breaches of duty on our part must be notified by the Customer without delay in writing, setting a reasonable remedial period, before asserting further rights; otherwise, the Customer shall forfeit the resulting rights. This shall not apply in the event of intentional, grossly negligent or fraudulent conduct on our part, in the event of injury to body, life or health, or assumption of a guarantee or a procurement risk pursuant to § 276 BGB within the meaning of Clause 4.6, or in the event of mandatory statutory liability.

8.5 For claims arising from breach of duty due to defective performance in the form of material defects (warranty claims), the limitation period shall be 12 months, unless expressly agreed otherwise, calculated from the day of transfer of risk (see Clause 7.3) or, if the Customer refuses acceptance or collection, from the time of the notice of availability for collection of the goods.

This shall not apply to claims for damages arising from a guarantee, the assumption of a procurement risk within the meaning of § 276 BGB within the meaning of clause 4.6, claims due to injury to body, life or health, fraudulent, intentional or grossly negligent conduct on our part, or where, in the cases of §§ 478 (recourse in the supply chain), § 438 para. 1 no. 2 (construction of buildings and delivery of items for buildings) and § 634a para. 1 no. 2 BGB (construction defects), or where a longer limitation period is otherwise mandatorily stipulated by law. The above provision does not entail a reversal of the burden of proof.

8.6 If the Customer or a third party improperly rectifies the products delivered by us and the defect is based thereon, we shall not be liable for the resulting consequences. The same applies to changes made to the item supplied without our prior consent.

8.7 Further claims of the Customer due to or in connection with defects or consequential defect damage, for whatever reason, shall exist only in accordance with the provisions of clause 11.

8.8 Any warranty and liability on our part is excluded if the Customer does not observe the technical regulations or operating instructions specified by us in accordance with the concluded contract or otherwise provided by us, insofar as the defect is based thereon.

8.9 Claims by the Customer for expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the item supplied has subsequently been moved to a place other than the Customer’s delivery branch, unless the relocation corresponds to its intended use. § 439 (3) BGB remains unaffected.

8.10 Defect claims do not exist in the case of only insignificant (i.e. barely visible/noticeable) deviation from the agreed or customary quality or usability.

8.12 We do not assume any warranty under §§ 478, 445a BGB if the Customer has machined, processed or otherwise altered the products delivered by us under the contract, insofar as this does not correspond to the contractually agreed intended purpose of the products.

9. Prices / Payment terms / Defence of insecurity

9.1 All prices are generally in EURO net, excluding packaging, sea or air transport packaging, freight, postage and, insofar as transport insurance has been agreed, insurance costs, plus VAT to be borne by the Customer (where applicable by law) at the statutory rate in force at the due date of payment, ex works or ex warehouse, plus any country-specific duties for deliveries to countries other than the Federal Republic of Germany, and plus customs duties and other fees and public charges for the delivery/service.

Unless agreed otherwise, we are entitled to require an advance payment.

9.2 Unless agreed otherwise, remuneration is due immediately upon delivery of the products. In the case of services, remuneration is due immediately upon performance. If payment by instalments has been agreed, the entire remaining remuneration is due immediately if the Customer is in default by more than 10 calendar days with payment of an instalment. An invoice is deemed to have been received no later than 3 business days after the invoice date, unless the Customer can prove later receipt.

9.3 If the Customer is in default with a due payment, it must pay default interest at the statutory rate. If the statutory rate is not specified, default interest shall be 9% above the base interest rate. The assertion of further damages remains unaffected.

9.4 All our claims are due immediately irrespective of the term of any bills of exchange accepted or cheques received if the Customer is in default with payment, culpably breaches other obligations, or if we become aware of circumstances that cast doubt on the Customer’s creditworthiness.

9.5 We are entitled to unilaterally increase the remuneration in the event of an increase in material manufacturing costs and/or material and/or product procurement costs, labour costs and ancillary labour costs, social security contributions, energy costs and costs arising from environmental requirements, and/or currency regulations and/or changes in customs duties, and/or freight rates and/or public charges, provided that such increases directly or indirectly affect the manufacturing or procurement costs of the goods or the costs of our contractually agreed services and provided that more than 4 months elapse between conclusion of the contract and delivery.

An increase within the meaning of the foregoing shall be excluded insofar as the cost increase in one or all of the aforementioned factors is offset by a cost reduction in other of the aforementioned factors regarding the overall cost burden of the delivery (netting).

If the aforementioned cost factors are reduced without such cost reductions being offset by increases in other of the aforementioned cost factors, such cost reductions shall be passed on to the Customer by way of a corresponding price reduction.

If, as a result of the above price adjustment right, the new price is 20% or more above the original price, the Customer shall be entitled to withdraw from contracts not yet fully performed with respect to the unperformed part. However, the Customer may exercise this right only without undue delay after notification of the increased price.

9.6 If, in exceptional cases, we bear the freight costs in accordance with the contract, the costumer shall bear the additional costs resulting from tariff increases in freight rates after conclusion of the contract.

9.7 Upon the Customer’s default in payment, default interest shall accrue at a rate of 9% above the base interest rate applicable at the due date of the payment claim pursuant to § 247 BGB. The assertion of further damages exceeding such default interest remains reserved.

9.8 In the case of a bank transfer, the date of payment shall be the date the payment is received by us or the date it is credited to our account or the account of the payment office specified by us.

9.10 If payment terms are not complied with, or if circumstances arise or become known that, in our reasonable commercial judgment, give rise to reasonable doubts about the Customer’s creditworthiness, including facts that existed at the time of conclusion of the contract but were not known to us or could not have been known to us, we are entitled, without prejudice to any further statutory rights, in such cases, to suspend work on ongoing orders or deliveries, and to demand advance payment or a bank guarantee from a German credit institution affiliated with the Deposit Protection Fund for any outstanding deliveries. If no satisfactory security is provided within a reasonable additional period, we are entitled, without prejudice to any further statutory rights, to withdraw from the contract with respect to the part of the contract that has not yet been fulfilled. The Customer shall be obliged to compensate us for any damage resulting from the non-performance of the contract.

9.11 The Customer shall only be entitled to exercise a right of retention or offsetting with respect to counterclaims that are undisputed or have been finally adjudicated. This also applies if the counterclaim intended to be offset is part of the reciprocal relationship between the two obligations under the contract concluded with us and is based on the violation of a principal obligation from the contractual relationship.

9.12 The Customer may exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.

9.13 Incoming payments shall first be used to settle costs, then interest, and finally principal claims according to their age. Any contrary stipulation by the Customer when making payment shall be ineffective.

9.14 For the timeliness of payment, irrespective of the method of payment, only the day of booking to our account is decisive. For cheque payments, the value date is decisive. Payments by the Customer must be made in our favour free of postage and charges.

10. Retention of title. Attachments

10.1 We retain title to all goods delivered by us (hereinafter collectively “Reserved Goods”) until all our claims from the business relationship with the Customer, including future claims arising from contracts concluded later, have been settled. This also applies to a balance in our favour if individual or all claims are included by us in a current account and the balance has been struck.

10.2 The Customer must treat the Reserved Goods with care; in particular, it must insure them adequately at its own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is necessary, the Customer must carry it out in good time at its own expense.

10.3 In the event of processing or transformation of the Reserved Goods by the Customer, such processing or transformation shall always be carried out for us. If the Reserved Goods are processed with other items not belonging to us, we acquire co-ownership of the new item in proportion of the value of the Reserved Goods (invoice final amount, including VAT) to the other processed items at the time of processing.

The authorisation of the Customer to dispose of the goods subject to retention of title in the ordinary course of business shall lapse if the Customer assigns claims against us to a third party in an unauthorised manner.

10.4 The Customer hereby assigns to us all claims, including securities and ancillary rights, arising from or in connection with the resale of goods subject to retention of title against the end customer or third parties. The Customer shall not enter into any agreements with its buyers that exclude or impair our rights in any way, nor shall it render the prior assignment of the claim ineffective. In the event of the resale of goods subject to retention of title together with other items, the claim against the third-party buyer in the amount of the agreed delivery price between us and the Customer shall be deemed assigned, unless the invoice indicates the amounts attributable to the individual goods.

10.5 The Customer shall remain entitled to collect the claims assigned to us until our revocation, which may be made at any time. Upon our request, the Customer is obliged to provide us immediately with all information and documentation necessary for the collection of the assigned claims and, unless we do this ourselves, to notify his buyers of the assignment to us without delay.

10.6 If the Customer includes claims from the resale of goods subject to retention of title in a current account relationship with its buyers, the Customer hereby assigns to us, in advance, the recognised balance in his favour, to the amount corresponding to the total value of the claims included in the current account relationship arising from the resale of our goods subject to retention of title.

10.7 If the Customer has already assigned claims from the resale of goods supplied or to be supplied by us to third parties, particularly as part of genuine or non-genuine factoring, or has entered into other agreements under which our current or future security rights pursuant to Section 10 could be impaired, he is obliged to inform us immediately. In the case of non-genuine factoring, we are entitled to withdraw from the contract and demand the return of products already delivered. The same applies in the case of genuine factoring if, under the agreement with the factor, the Customer is not free to dispose of the purchase price of the claim.

10.8 We are entitled to take back the Reserved Goods if the Customer acts in breach of contract, in particular in the event of default in payment.

Taking back the Reserved Goods by us does not constitute withdrawal from the contract unless we have expressly declared this in writing or in text form, or unless mandatory statutory provisions provide otherwise.

After taking back the Reserved Goods, we are authorised to realise them. The proceeds of realisation shall be set off against the Customer’s liabilities – less reasonable realisation costs.

10.9 If the value of the securities held by us under the above provisions exceeds the secured claims by more than 10%, we are, upon the Customer’s request, obligated to release securities at our discretion to the extent of the excess.

10.10 The processing and transformation of the Reserved Goods shall be carried out for us as the manufacturer, but without imposing any obligation on us. If the Reserved Goods are processed with other items not belonging to us, or are inseparably combined with them, we shall acquire joint ownership of the new item in proportion to the net invoice value of our goods to the net invoice value of the other processed or combined items. If our goods are combined with other movable items into a single item, which is to be regarded as the principal item, the Customer hereby transfers to us joint ownership of this item in the same proportion. The Customer shall store the property or joint property free of charge for us. The resulting joint ownership rights shall be considered as Reserved Goods. Upon our request, the Customer shall be obliged to provide us with all information necessary to protect our ownership or joint ownership rights at any time.

10.11 If specific measures and/or declarations are required in the importing country for the effectiveness of the above-mentioned retention of title or any other rights in favour of us with respect to the Reserved Goods, the Customer must notify us of this immediately in writing or in text form after the conclusion of the contract and carry out or submit such measures and/or declarations at their own cost without delay. We will cooperate to the necessary extent. If the law of the importing country does not permit a retention of title but allows us to reserve other rights to theReserved Goods, we may exercise any such rights at our reasonable discretion (§ 315 BGB). If such measures do not achieve an equivalent security for our claims against the Customer, the Customer shall be obliged to provide us, at their own expense, with an immediate payment guarantee from a German bank, which is a member of the Credit Guarantee Fund, excluding the requirement for prior legal action or deposit according to German law and jurisdiction..

10.12 In the event of garnishments or other interventions by third parties with respect to the Reserved Goods or any claims assigned to us, the Customer must immediately notify us in writing so that we can file a lawsuit pursuant to § 771 ZPO (German Code f Civil Procedure). If the third party is unable to reimburse us for the court and out-of-court costs of such a lawsuit under § 771 ZPO, the Customer shall be liable for the loss incurred by us..

11. Exclusion / limitation of liability

11.1 Our liability for breaches of duty and in tort is limited to intent and gross negligence.

11.2 The above exclusion of liability Pursuant to clause 11.1 does not apply:

• for our own intentional or grossly negligent breaches of duty, or for the intentional or grossly negligent breaches of duty by our statutory representatives or vicarious agents.
• for the breach of essential contractual obligations, “Essential contractual obligations” are those obligations whose fulfilment characterizes the contract and on which the Customer may rely;
• in the event of injury to body, life, or health, including by statutory representatives or vicarious agents.
• insofar as we have assumed a guarantee for the quality of our goods or for the existence of a performance result, or a procurement risk pursuant to Section 276 BGB, as referred to in clause 4.6.
• in cases of liability under the German Product Liability Act or other mandatory statutory liability provisions.

11.3 In the event that we or our vicarious agents are only liable for slight negligence and none of the cases mentioned in Section 11.2, points 2–4, apply, we shall be liable for a breach of essential contractual obligations only for the typical and foreseeable damage under the contract.

11.4 The exclusions and limitations of liability set out in Sections 11.1 to 11.3 and Section 11.5 shall apply to the same extent in favour of our Corporate bodies our executive and non-executive employees, other vicarious agents, and our subcontractors.

11.5 Claims for damages by the Customer arising from this contractual relationship may only be asserted within a limitation period of one year from the statutory commencement of the limitation period. This does not apply if we are at fault due to intent or gross negligence, for claims arising from the violation of body, life, or health, or in the case of a claim based on a tortious act or an expressly assumed guarantee or the assumption of a procurement risk pursuant to Section 276 BGB as referred to in Section 4.6, or in the event that a longer limitation period is required by mandatory statutory law.

11.6 The foregoing provisions shall not result in a reversal of the burden of proof.

12. Place of performance / Jurisdiction / Applicable law

12.1 The place of performance for all deliveries and services, as well as for payments, is our registered office, unless expressly agreed otherwise.

12.2 Exclusive place of jurisdiction for all disputes – insofar as the Customer is a merchant within the meaning of the German Commercial Code – is the registered office of our company. For the avoidance of doubt, the jurisdiction provisions of sentences 1 and 2 also apply to such matters between us and the ordering party that may lead to non-contractual claims within the meaning of EC Regulation No. 864/2007. However, we are also entitled to sue the Customer at its general place of jurisdiction.

12.3 For all legal relationships between the Customer and us, the law of the Federal Republic of Germany shall apply exclusively, in particular with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). It is expressly stated that this choice of law shall also be understood as such within the meaning of Article 14(1)(b) of Regulation (EC) No. 864/2007 and therefore shall also apply to non-contractual claims within the meaning of this Regulation. If foreign law is mandatory in an individual case, our terms and conditions shall be interpreted in such a way that the economic purpose pursued by them is maintained to the greatest possible extent.

13. Third-party IP rights. Licence

13.1 Unless otherwise expressly agreed between us and the Customer, we are only obligated to deliver the goods free from third-party industrial property rights and copyrights in the Federal Republic of Germany.

If a third party makes valid claims against the Customer due to the infringement of intellectual property rights by products delivered by us, we shall be liable to the Customer within the period specified in Section 8.7 as follows:
At our discretion, we will initially attempt, at our own expense, either to obtain a usage right for the relevant deliveries or to modify the delivery item in accordance with the agreed contractual specifications so that no intellectual property right is infringed, or to replace it. If this is not possible or we refuse to do so, the Customer shall be entitled to assert their statutory rights, which shall, however, be modified by the contract and these General Terms and Conditions.

The Customer shall only be entitled to rights against us in the event of an intellectual property infringement by our delivered goods if the Customer notifies us in writing or in text form without delay of the claims asserted by third parties, does not acknowledge the infringement, and reserves all defence actions and settlement negotiations for us.

If the Customer discontinues the use of the products for reasons of damage limitation or other important reasons, the Customer is obliged to expressly inform the third party that the cessation of use does not imply an acknowledgment of an intellectual property infringement. If the Customer is attacked by third parties due to the use of the products delivered by us in relation to intellectual property infringements, the Customer agrees to immediately notify us in writing or in text form and give us the opportunity to participate in any potential legal dispute. The Customer shall assist us in every respect in conducting such legal proceedings by providing all relevant information from their sphere that may arise in the course of the legal dispute. The Customer shall refrain from any actions that could impair our legal position.

13.2 The Customer’s claims are excluded insofar as the Customer is responsible for the intellectual property infringement. Claims of the Customer are also excluded if the intellectual property infringement is caused by specific instructions from the Customer, by an unforeseeable application not anticipated by us, or by the products being modified by the Customer or used together with products not supplied by us that do not conform to their intended use, insofar as the intellectual property infringement is based on this.

13.3 Upon proper fulfilment of its contractual obligations, the Customer shall be granted the right to use the goods in accordance with the contract.

All copyrights, patents, or other intellectual property rights shall remain with us, unless expressly agreed otherwise.

If, during the performance of the contract, intellectual property rights capable of protection are developed by us, we shall grant the Customer a non-exclusive, non-transferable right of use on commercially preferential terms. The Customer’s right to retain all rights relating to the subject of the invention, in the event that the creation of the invention is a primary contractual obligation on our part, remains unaffected.

14. Export control / Product approvals / Import regulations

14.1 The delivered goods are, unless otherwise expressly agreed between us and the Customer, intended for the first placing on the market within the Federal Republic of Germany or, if delivered outside the Federal Republic of Germany, to the first delivery country agreed between the Customer and us (first delivery country).

14.2 We inform the Customer that the transfer/export of goods (products, software, technology) as well as the provision of services (e.g. assembly, maintenance, servicing, repairs, training etc.) with a cross-border reference for the performance of contractual obligations is subject to European and German foreign trade law and that individual deliveries as well as technical services may be subject to export control restrictions and prohibitions. This applies particularly to so-called military and dual-use goods. Additionally, European and other global national embargo regulations may apply against certain countries and persons, companies, and organizations, which may prohibit or place the delivery, provision, export, or sale of goods and the provision of services under prior approval. Therefore, we may be required to obtain official authorizations or other certifications for cross-border delivery or provision. Further rights and obligations in this regard are regulated by the following provisions. For certain transactions involving US goods or other US connections, the extraterritorial effect of US (re)export law may apply, which could lead to prohibitions or licensing obligations that we must observe to avoid being sanctioned by US authorities.

14.3 The Customer itself is obliged to examine the existence and compliance with export and import control regulations and to strictly observe the export regulations and embargoes relevant for these goods, in particular those of the European Union (EU), Germany or other EU Member States as well as, where applicable, the USA or Asian or Arab countries and all affected third countries, insofar as it exports the products delivered by us, or has them exported by us.

14.4 The cross-border return of samples, tools, software, material and also technology, including in the form of drawings, instructions, data etc., to the Customer may, in individual cases, also be subject to foreign trade law provisions and dependent on official approval procedures.

The Customer warrants that, prior to transfer of the products delivered by us to it and their components and/or accessories into a country other than the country of initial delivery agreed with us, it will obtain the required national product approvals or product registrations in good time and that the requirements anchored in the national law of the affected country regarding the provision of user information in the national language, and also all import regulations and export control regulations, are complied with.

14.5 The fulfilment of the delivery obligation may require the release or granting of export or transfer permits or other foreign trade certifications by the competent authorities. If we are unable to deliver on time due to the duration of the necessary and proper execution of customs or foreign trade application, approval, or inspection procedures without our fault, the delivery period shall be extended accordingly for the duration of the delay caused by such governmental procedures. We cannot generally provide a fixed duration for such procedures. We will inform the Customer promptly about such procedures, circumstances, and measures on a case-by-case basis. Claims for damages by the Customer for delays not caused by us are excluded unless we have expressly assumed a liability for guarantee in relation to the Customer.

14.6 The Customer is obliged to transmit timely and complete information on the end-use and, where applicable, the end-user deviating from the initial statements made to us, of the goods to be delivered and/or the service to be provided, without delay after conclusion of the contract in writing or in text form. Any delivery or performance period shall not begin to run earlier. This includes, in particular, issuing any required end-use documents (so-called EUCs) and transmitting the original to us, in order to check the end-use and the intended purpose of the goods and/or services and to provide proof to the competent authority for customs and export control purposes. If the aforementioned documents indicate potential breaches of export prohibitions or embargo regulations, we are entitled to withdraw from the contract without compensation.

14.7 Any re-export conditions arising from approvals granted to us by the competent authorities or courts must be strictly complied with by the Customer. The Customer must contractually oblige its customers accordingly and provide us with evidence thereof upon request. We will inform the Customer of the scope and extent of such conditions imposed on us no later than upon delivery.

14.8 If the required export or transfer permits or other necessary approvals are not granted to us or our suppliers by the competent authorities through no fault of our own, or if other obstacles arise due to customs, foreign trade, or embargo regulations that we or our suppliers must observe under applicable law, which hinder the fulfilment of the contract or the delivery, in whole or in part, we are entitled to withdraw from the contract or from the individual delivery or service obligation, provided that we have not expressly assumed an unconditional liability for the procurement of such permits or documents. This also applies if, through no fault of our own, export control and embargo-related obstacles arise between the conclusion of the contract and the delivery or service provision, or during the assertion of warranty claims, e.g., due to a change in legal circumstances, which temporarily or permanently prevent the execution of the delivery or service. This may be the case if export or transfer permits or other foreign trade approvals granted to us or our suppliers are revoked by the authorities through no fault of our own, or if other legal obstacles due to applicable customs, foreign trade, and embargo laws hinder the fulfilment of the contract or delivery/service. Claims for damages from the Customer for this reason are excluded unless we have expressly assumed a liability for the procurement of the required permits or documents.

14.9 The Customer shall specifically check and ensure, and provide evidence to us upon request, that, unless there is legal or export control clearance:

• the products delivered are not intended for military, nuclear, or weapons-related uses;
• no companies or persons listed in the US Denied Persons List (DPL) are supplied with US-origin goods, US software, or US technology;
• no companies or persons listed in the US Warning List, US Entity List, or US Specially Designated Nationals List are supplied with US-origin products without the relevant approval;
• no companies or persons listed in the Specially Designated Terrorists, Foreign Terrorist Organizations, Specially Designated Global Terrorists lists or the EU or other relevant terrorist or negative lists for export control are supplied;
• no military recipients are supplied with the products delivered by us;
• no recipients are supplied where there is a violation of other export control regulations, particularly those of the EU or ASEAN countries;
• all early warning notices from the relevant German or national authorities in the country of origin of the delivery are observed

14.10 The Customer shall ensure that, upon request, they provide evidence of the above obligations to their buyers in relation to the products delivered by us and inform them of the need to comply with such regulations.

14.11 The Customer agrees that access to and the use and/or export of the goods delivered by us shall only occur if the above checks and confirmations by the Customer have been completed; otherwise, the Customer must refrain from the intended export, and we are not obligated to perform.

14.12 The Customer agrees, when transferring the goods delivered by us to third parties, to bind these third parties to the same obligations as the Customer under Sections 14.1 to 14.11 and to inform them of the necessity of complying with such legal requirements.

14.13 The Customer guarantees, in the case of delivery outside the Federal Republic of Germany, at their own expense, that all national import regulations of the first delivery country are fully and timely complied with, without cost to us.

14.14 The Customer shall indemnify and hold us harmless from all damages and proven usual and reasonable expenses arising from the Customer’s culpable breach of the obligations set forth in Sections 14.1 to-

14.15 Excluded are the costs for the Customer’s own employees. Section 254 BGB (contributory negligence) remains unaffected.

15. Opening of insolvency proceedings / Incoterms / Written form / Reservation of right to amend / Severability clause

15.1 An application by the Customer for the opening of insolvency proceedings, or the Customer’s cessation of payments despite a reminder (Abmahnung) not based on rights of retention or other rights, shall entitle us, if the Customer is in breach of its obligations towards us at that time, at any time to withdraw from the contract or to make performance of the contract dependent on prior fulfilment of the Customer’s payment obligations. In the case of continuing obligations, we shall be entitled, instead of withdrawal, to terminate without notice. § 314 BGB remains unaffected. If delivery of the purchased item or our performance has already taken place, the consideration shall become due immediately in the aforementioned cases. We shall also be entitled, in the aforementioned cases, to demand the return of the purchased item and to retain it until the purchase price has been paid in full.

15.2 Insofar as trade clauses under the International Commercial Terms (Incoterms) are agreed, Incoterms 2020 shall apply.

15.3 All agreements, ancillary agreements, assurances and contract amendments require written form or text form. This also applies to any waiver of the written-form agreement itself. The precedence of individual agreements in written, text or oral form (§ 305b BGB) remains unaffected.

15.4 We reserve the right, where there are objective reasons, namely changes in relevant legislation, changes in relevant case law, consequences of necessary technical changes, additions to the services offered, or changes in third-party services linked to our services that have an impact on our services, to unilaterally amend these AGB and our data protection provisions at equitable discretion (§ 315 BGB), i.e. taking into account the interests of both parties. Such amendments may extend to the scope of services, the possibility of using them and whether they are subject to remuneration, as well as contractual time limits, provided that the amendment contains an appropriate balancing of disadvantages in favour of the Customer.

The amendments will be notified to the contractual partner by email and will take effect upon receipt of the notification on the condition that the contractual partner has not objected to the amendment in whole or in part in writing or by email within six weeks of receipt of the notification of the amendment, insofar as we have expressly pointed this out again in the amendment notification. We will specifically draw your attention to this effect of approval in the amendment notification.

Amendments shall not have retroactive effect on services used before they take effect. For this reason, we recommend that you save the version of our AGB and the data protection provisions made available to you upon registration, because we do not store a personalised version for you.

If a contractual partner objects in due time to the notified amendments to the terms of use and/or data protection provisions, the previous terms of use and/or data protection provisions shall remain in effect.

Note:
In accordance with the provisions of the data protection law, we hereby inform you that contract processing in our company is carried out via an IT system (EDV-Anlage) and that, in this context, we also store the data received due to the business relationship with the Customer.

Hamburg, May 2021