General business terms for deliveries and services

I. General scope, definitions

1. All contracts concerning deliveries and services which we conclude with companies, legal entities under public law or investment funds under public law from 1 January 2022, are subject to the fol-lowing terms and conditions.

2. Our business terms shall apply exclusively; deviating terms and conditions of the buyer or supple-mentary terms and conditions of the buyer which are deemed unfavourable for us shall not become part of the contract even if we do not object to these separately.

3. The contents of the contract are oriented to the written agreements. No other agreements have been reached. Amendments or addendums to the contract shall only be deemed effective if they are con-firmed by us in writing.

4. Our business terms shall also apply to future business with the buyer.

5. In case of continuous obligations the buyer shall be informed of changes to the terms and conditions respectively in writing by marking the changed provisions and said changes shall be deemed as agreed if the buyer continues the continuous obligation without filing an objection within a reasonable deadline.

6. The contractual language is German.

 

II. Offer, offer documents, orders

1. Our offers are without obligation. Offers of the buyer are deemed accepted if we have confirmed these in writing or have carried out the delivery or service.

2. We reserve the property rights and copyrights to all documents, in particular drawings, samples, data carriers, documentation, diagrams and calculations handed over to the buyer, they may not be used for other purposes than as per contract and not made accessible to third parties and are to be re turned to us immediately free house if the contract is ended or insofar as the intended use as per contract has been satisfied. This shall apply in particular to those documents and information which are described as confidential. We are entitled to demand that documents be handed over at all times if the secrecy is not ensured. The costs for drawings, calculations, sample productions, tools, forms and templates shall be separated from the product price and shall be for the account of the buyer or the customer.

3. The costs for the maintenance and proper storage of tools, forms, templates, etc. shall be borne by us. The buyer or customer shall bear the costs for the production of spare parts which have become necessary owing to wear and tear. If our contractual partner suspends or ends the cooperation during the production time of the tools, he shall bear all costs incurred until that date. If tool costs are not agreed separately, but settled through the number of units, the costs shall be reimbursed pro rata in case the agreed number of units is not achieved.

4. We are entitled to place sub-orders.

 

III. Delivery and passing of risk

1. Agreed dates and deadlines are principally to be observed. They may not be unilaterally postponed by our contractual partner without the agreement of a corresponding compensation for disadvantages. The delivery time shall begin as soon as all details or designs have been presented or both parties agree upon all parts of the business and refers to the provision or completion in our plant. It shall be extended to a reasonable extent in case of the occurrence of unforeseeable, exceptional events, even if they occur at our sub-suppliers insofar as they have a substantial influence on the completion or delivery of the delivered object. In case of sales ex works they delivery periods and delivery dates shall also be deemed as observed with the notification that the goods are ready for despatch if the goods cannot be sent on time without this being our fault or the fault of the supplier.

2. Delivered quantities which deviate from the order are permitted within a tolerance of 10% and are deemed as satisfaction as per contract. Delivery before expiry of the delivery time and partial delivery are permitted. They can be invoiced separately.

3. The products shall be packaged as customary for the industry. The packaging shall be charged at the cost price. The goods shall be shipped, insofar as not otherwise agreed, ex works without any obligations for the most reasonably-price type of shipment. Otherwise the goods shall be made available by taking into account the customary time for loading and shipment. Goods for which notification has been given that they are ready for shipment are to be taken over immediately; otherwise they shall be placed in interim storage and can be shipped by us at own choice after setting a deadline. The goods shall be deemed as delivered one week after commencement of the storage.

4. The risk shall pass to our contractual partner when the goods are handed over to the shipment agent, no later however than when they leave the plant or the warehouse or with receipt of the notification that the goods are ready for shipment even if delivery “free“ or “free house“ has been agreed.

5. A reasonable final deadline is to be set with the first time delay in delivery by us. After the unsuc[1]cessful expiry of this deadline our contractual partner is entitled to cancel the contract with regard to the unsatisfied part of the contract. The assertion of damages on default is excluded.

6. In case of incapacity on our part which occurs after conclusion of the contract the buyer is not entitled to any damages insofar as we have informed the buyer of the impossibility to provide the service.

 

IV. Condition of the goods and/or services

1. The details concerning properties contained in our public statements such as catalogues, brochures, circulars, advertisements, diagrams, advertising and price lists shall only be deemed as belonging to the condition insofar as they have become part of the contract. Public statements of a third party manufacturer or his vicarious agent shall only be deemed as belonging to the condition of the goods if they have been agreed in the contract or we have expressly adopted these in writing in public statements.

2. We reserve the right to make customary technical changes in particular make improvements until delivery if this only leads to insignificant changes to the condition and the buyer is not unreasonably impaired.

3. Details concerning the condition or durability of a good or service do not contain any guarantee (assurance) within the meaning of § 276 Par. 1 BGB [Civil Code] and no guarantee of condition or durability within the meaning of § 443 BGB if we have not expressly assumed such a guarantee in writing.

 

V. Prices and terms of payment

1. Prices are deemed in EURO ex works plus the applicable rate of VAT, packaging, transport and value guarantee costs; these positions will be charged separately

2. A subsequent reduction in the order quantity leads to an increase in the unit prices and the agreed tool cost shares with the special consideration of possible additional equipment and start-up costs. In case of an essential change in certain cost factors (wages, primary materials, etc.) the agreed price can be reasonably adjusted in line with the influence of these factors.

3. The prices of previous or current orders shall not be binding for follow-up orders.

4. Payments are to be made within 30 days from invoice date without deduction and must be made using statutory means of payment. 2% cash discount shall be granted in case the payment is re[1]ceived within 10 days after the invoice date. The acceptance of bills of exchange requires special agreements. Interest on default shall be asserted in the statutory amount in case of default of pay[1]ment or deferral.

5. If the customer does not satisfy his payment obligations, or if we become aware of circumstances which according to responsible commercial discretion are suitable for raising doubts about the cre[1]ditworthiness, then all of our receivables, even insofar as we have accepted bills of exchange for these, shall be deemed due and payable immediately. We are in this case only obliged to make further deliveries if the customer settles outstanding liabilities immediately and makes an advance payment for new deliveries.

 

VI. Reservation of title

1. The delivered goods shall remain our property until all current and future (also conditional) receivables from the business relationship to our contractual partner have been satisfied. In case of current account the reserved property shall be deemed as collateral for the balance claim.

2. The contractual partner is permitted to resell the reserved goods within the framework of his proper business operation under the condition that he also agrees a reservation of title with his business partner. At the same time he hereby assigns the receivables to which he is entitled from his resale to us in advance in the amount of the value of the respective reserved goods. We hereby accept this assignment. Pledging and assignment as collateral of our reserved goods is not permitted.

3. All processing of the reserved goods by our contractual partner within the meaning of § 950 BGB is always carried out on our behalf. In the event of the combination or mixing of the reserved goods according to §§ 947, 948 BGB we shall acquire the co-ownership to the new object as a ratio of the invoice value of the reserved goods to the other combined or mixed objects at the time of the com[1]bination or mixing. If, in the event of the combination or mixing of the reserved goods according to §§ 947, 948 BGB, our contractual partner has become the sole owner the pro rata assignment of coownership to the main object to is accordingly deemed as agreed; in this case our contractual partner shall store the object free of charge on our behalf (anticipatory constructive bailment).

4. The buyer must inform us immediately and serve the necessary documents in the event of enforce[1]ment measures concerning our reserved property or the receivables assigned in advance.

5. The upper cover limit for the collateral items is 120%. We shall insofar release the collateral items held by us upon request of our contractual partner to the extent that their realisable value exceeds the receivables which are to be secured by more than 20%.

6. A separate agreement has been reached between the parties for the agreement of the reservation of title, which will become the object of the contract. The agreement shall also be legally effective if it has not been signed by our contractual partner.

VII. Confidentialities, industrial property rights

1. The contractual partners undertake to treat all non-evident commercial and technical details, of which they become aware through the business relations, as business secrets. Drawings, models, templates, samples and similar objects may only be reproduced within the framework of the operational requirements and the provisions under copyright law.

2. If goods are produced and delivery in a design which is particularly stipulated by our contractual partner he shall assume the warranty that no rights of third parties, in particular patents, utility models and other property rights and copyrights are infringed by the design. If this is nevertheless the case the contractual partner shall indemnify us from all claims.

 

VIII. Warranty and liability

1. Limit to liability with respect to reason: the buyer shall only be entitled to claims for damages or claims for reimbursement of fruitless expenses owing to breaches of duty or if the due service is not provide by us or not as owed, owing to default or in case of defects for

1.1. damages from the injury to life, the body or the health, which are due to our at least negligent breach of duty or a wilful or negligent breach of duty of one of our legal representatives or vicarious agents,

1.2. other damages which are due to an at least grossly negligent breach of duty on our part or to an at least grossly negligent breach of duty of one our legal representatives, executives or vicarious agents or to the at least negligent breach of essential contractual duties (cardinal duty) on our part or an at least negligent breach of duty of one of our legal representatives, executives or vicarious agents and

1.3. damages which fall in the scope of protection of an assurance granted by us (guarantee, § 276 Par.1 BGB) or a guarantee of condition or durability (§ 443 BGB).

1.4. The colouring is very complex in the range of the contract due to the material (different strengths, surface quality, alloy tolerances with the primary material). Therefore, the following additional regulations apply to complaints for defects, which are to be based on deviations in colour and shine: The colour scale, which INOX-COLOR uses within the framework of advertising means, has no significance when assessing the question whether there is a deviation in colour and a corresponding defect. The customer can only substantiate a complaint for defects with a deviation in colour if the admissible deviation in colour has been stipulated in advance based on limit samples (colour tolerance sample). If such limit samples are not available a complaint for defects, which is to be substantiated on a deviation in colour, is excluded from the start. This in particular also applies in case of follow-up deliveries. Even if the deviation in colour is outside of the limit sample this shall no represent any grounds for complaint if the cause of the deviation in colour is in the primary material (surface faults, irregularities within the DIN standards).

2. Limit to liability with respect to amount: insofar as our liability for simple negligence and our liability for grossly negligent behaviour of our vicarious agents, who are not legal representatives or executives, is not excluded according to Subclause 1, we shall only be liable for the typical damages which can be expected upon conclusion of the contract and for the reimbursement of fruitless expenses up to the amount of the interest in satisfaction. We shall only be liable for loss or damages to data in the amount of the costs of the recovery in case of availability of proper back-up copies.

3. Liability from pre-contractual obligations and business contacts: the above paragraphs shall apply, also for claims for damages of the buyer from obligations, which are produced by taking up contractual negotiations, initiation of a contract or similar business contacts. If a contract is concluded between us and the buyer claims for damages of the buyer shall be deemed as remitted which would not have been substantiated according to the above provisions with an existing contract.

4. Claims from assigned right: the above provisions shall also apply to claims which the buyer asserts from assigned right. The buyer can only refer to foreign law insofar as the claim would also have been substantiated with the application of the above provisions and these general contractual terms and conditions.

5. Product Liability Act: the above regulations shall not apply to claims according to §§ 1, 4 ProdHaftG [Product Liability Act]. The same shall apply in case of initial incapacity or impossibility for which we are responsible.

6. Restriction to liability for the benefit of third party: insofar as our liability is excluded or limited this shall also apply to the personal liability of our employees, workers, representatives and vicarious agents.

 

IX. Claims of the buyer in case of defects (defects of quality and title)

1. Responsibility to inspect and report defects: rights of the buyer owing to defects of quality are subject to the proper inspection and report of defects (§ 377 HGB [Commercial Code]).

2. Defects of quality with used objects: the rights of the buyer owing to defects of quality are excluded with the purchase of used goods. This shall not apply to claims for damages and claims from an assurance given to us (guarantee, § 276 Par.1 BGB) or guarantee of condition or durability (§ 443 BGB).

3. Subsequent performance: we are entitled to remedy the defect at our choice through subsequent improvement or delivery of a faultless object (subsequent performance). In case of failures in the subsequent performance the buyer can reduce the purchase price or at his choice cancel the contract. The buyer's right to damages remains unaffected.

4. We are only obliged to damages insofar as we are at fault. The liability for slight negligence is excluded. Warranted qualities must be expressly and specifically described as such in writing. Indirect damages and follow-up damages from defects are excluded, as well as the claim for missed profits and processing costs. Insofar as admissible by law our liability from fault upon conclusion of the contract or from positive breach of contract shall also cease to apply.

5. The warranty shall end with the expiry of 12 months after receipt of the goods at the place of destination.

6. Statute-of-limitations of claims owing to defects insofar as not excluded through these terms and conditions.

6.1. The statute of limitations shall apply to claims for damages owing to defects and to claims from tortious act,

6.2. All other claims of the buyer owing to defects of quality in particular for subsequent performance, reimbursement of expenses with self-undertaking, cancellation, reduction and reimbursement of unsuccessful expenses shall become statute-barred within one year,

6.3. The same shall apply to claims owing to defects of title with the following exception: claims owing to a defect, which exists in an in rem right of a third party, based on which it can be demanded that the purchased object is handed over, shall become statute-barred within five years.

 

X. Inhibition of statute of limitations in case of negotiations

The statute of limitations for claims of the buyer in case of negotiations shall only be inhibited if we have agreed to negotiations i writing. The inhibition shall end three months after our last written statement.

 

XI. Final provisions

1. Force majeure, industrial disputes, unrest, official measures and other unforeseeable, unavoidable and serious events shall release the contractual partners from the service obligations for the duration of the interference and to the extent of their effect. This shall also apply if these events occur at a time in which the relevant contractual partner is in default. The contractual partners undertake to provide the necessary information immediately within the framework of that which is deemed reasonable and to adjust their obligations to the changed circumstances.

2. Place of performance for deliveries and payments is Walldürn.

3. These business terms and the whole legal relations of the parties are subject to substantive German law. The applicability of the convention of the UN for contracts concerning the international sale of goods (UN law on purchases) is excluded.

4. Buchen District or the Regional Court – Chamber for Commercial Affairs - Mosbach has local jurisdiction in case of all disputes ensuing directly or indirectly from the contractual relationship. We are however entitled to file legal action against the buyer at another place of jurisdiction.

5. The invalidity of provisions in these contractual terms and conditions or any other provision agreed between the parties has no influence on the validity of the other provisions of these General Business Terms or other agreements. In case of other provisions agreed between the parties, the parties undertake to replace the invalid provisions by such valid provisions which shall as far as possible satisfy the intention of the invalid provisions.

 

(AGLL Status: 1 January 2022)