General Terms of Delivery and Payment of B&W PolyEngineering Türkheim GmbH

– As of 08/2020 –

Section 1 Scope

1.1. These General Terms of Delivery and Payment (T&Cs) apply to all contracts between B&W PolyEngineering Türkheim GmbH (Supplier) and its customers (Ordering Party) who, upon conclusion of the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB)), regardless of whether the customers are natural or legal persons or partnerships with legal capacity. The T&Cs apply in particular to contracts for the sale and/or delivery of movable goods, regardless of whether the Supplier manufactures the delivery items itself or purchases them from sub-suppliers. The T&Cs also apply to similar future contracts without the Supplier having to refer to them again in each individual case.

1.2. These T apply exclusively. Any deviating, conflicting, or supplementary general terms and conditions of the Ordering Party are expressly rejected. This applies in particular even if the Supplier is aware of the Ordering Party’s T and/or the Supplier performs its service without reservation.

1.3. Individual agreements with the Ordering Party shall always take precedence over these T

1.4. Oral commitments made by the Supplier prior to the conclusion of the contract are generally non-binding. For contracts concluded in writing or in text form, the presumption of accuracy and completeness applies. The right to provide evidence of individual agreements in accordance with Section 1.3 remains reserved.

§ 2 Offer and Conclusion of Contract

2.1. The Supplier’s offers are subject to change and non-binding. This applies in particular to catalogs, technical documentation, product presentations on the Internet, or other product descriptions provided by the Supplier.

2.2. The Supplier may accept orders from the Ordering Party within 14 days. The Supplier may declare acceptance in writing or text form (e.g., email) by means of an order confirmation or by delivering the ordered items.

2.3. Information provided by the Supplier regarding the subject of the delivery or service (in particular weights, dimensions, tolerances, and technical data) as well as representations of the same by the Supplier (e.g., drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but rather descriptions or identifications of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible provided they do not impair usability for the contractually intended purpose.

§ 3 Delivery and Performance

3.1. If a delivery period has not been individually agreed upon, the Supplier shall specify it upon acceptance of the order. If no specification is made, the delivery period is approximately two weeks from the conclusion of the contract. Compliance with the delivery period is deemed to have occurred if the Supplier has notified the Ordering Party of readiness for dispatch within the delivery period or if the goods have left the Supplier’s plant within the period.

3.2. The Supplier shall determine the shipping route and means, packaging, as well as forwarders, carriers, or other persons designated to carry out the shipment.

3.3. The Supplier is entitled to make partial deliveries insofar as this is reasonable for the Ordering Party.

3.4. Events of force majeure entitle the Supplier to suspend delivery for the duration of the hindrance and a reasonable start-up period. Force majeure exists if the delivery delays are based on an unusual and unforeseeable event over which the Supplier has no influence and the consequences of which could not have been avoided despite the exercise of due care. This also applies if a delay has already occurred when such events arise. Force majeure includes in particular, or is equivalent to: natural disasters, epidemics, infection control measures, monetary, trade policy and other sovereign measures, strikes, lockouts, operational disruptions for which the Supplier is not responsible (e.g., fire, power outages, machine breakdown, shortage of raw materials or energy), obstruction of transport routes, delays in import/customs clearance, as well as all other circumstances which, without being the fault of the Supplier, significantly impede or make deliveries impossible. It is irrelevant whether these circumstances occur at the Supplier’s site or at a sub-supplier’s site. If the execution of the contract becomes unreasonable for the Ordering Party or the Supplier due to the aforementioned events, in particular if the execution of the contract is delayed in essential parts by more than six months, that party may declare the cancellation of the contract.

3.5. The occurrence of a delivery delay by the Supplier is determined according to statutory regulations. Deviating from sentence 1, however, a reminder by the Ordering Party is always required. If the Supplier falls into delivery delay, the Ordering Party may demand flat-rate compensation for its delay damage. The damage lump sum amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, but no more than 5% of the delivery value of the delayed goods in total. The Supplier reserves the right to prove that the Ordering Party has suffered no damage at all or only significantly less damage than the aforementioned lump sum.

3.6. The rights of the Ordering Party pursuant to Section 10 of these T and the statutory rights of the Supplier, in particular in the event of an exclusion of the performance obligation (e.g., due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.

§ 4 Prices and Payment

4.1. The Supplier’s prices are—unless otherwise stated or agreed—exclusive of VAT and ex works (EXW according to INCOTERMS).

4.2. If a delivery is agreed to take place four or more weeks after the conclusion of the contract and if taxes, agreed third-party costs, or raw material prices increase significantly after the conclusion of the contract, the Supplier is entitled to increase the agreed price to the same extent. The same applies if new taxes arise or other circumstances occur in the economic situation that lead to an unforeseeable and significant increase in manufacturing costs. In this case, the Supplier shall inform the Ordering Party of the price increase without delay and shall disclose the reasons for a price increase upon request. In such a case, the Ordering Party has a right of termination within two weeks of notification of the price increase.

4.3. Payment is due within 30 days of receipt of the invoice. For payment within 14 days, the Ordering Party is entitled to a 2% discount. However, the Supplier is entitled at any time, even within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment.

4.4. The Ordering Party shall be in default upon expiry of the payment period specified in Section 4.2. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. The Supplier reserves the right to assert further damages caused by delay. With respect to merchants, the Supplier’s claim to commercial maturity interest (Section 353 of the German Commercial Code (HGB)) remains unaffected.

4.5. The Ordering Party shall only be entitled to offsetting or retention rights to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery items, the counter-rights of the Ordering Party remain unaffected.

4.6. If it becomes apparent after the conclusion of the contract that the Supplier’s claim to payment is jeopardized by the Ordering Party’s lack of ability to perform, in particular due to:

• negative information from a credit agency,
• a payment default by the Ordering Party within the business relationship of more than two months,
• account reversals or failed direct debit collections due to insufficient funds,
• an application by the Ordering Party for the initiation of insolvency proceedings over its assets,

1. the initiation of insolvency proceedings over the assets of the Ordering Party or the rejection of an opening for lack of assets, the Supplier is entitled to refuse performance according to statutory regulations and—if necessary after setting a deadline—to withdraw from the contract. In the case of contracts for the manufacture of non-fungible items (custom-made products), the Supplier may declare withdrawal immediately; the statutory regulations on the dispensability of setting a deadline remain unaffected.

§ 5 Place of Performance, Transfer of Risk, Acceptance

5.1. Unless otherwise agreed, the place of performance is the respective plant of the Supplier. The location of the respective plant from which the delivery was made is also the place of performance in the event of supplementary performance.

5.2. The risk of accidental loss and accidental deterioration of the goods passes to the Ordering Party at the latest upon handover. If shipment has been agreed, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes upon delivery of the goods to the forwarder, the carrier, or the person otherwise designated to carry out the shipment.

5.3. Insofar as acceptance has been agreed, this is decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance.

5.4. Handover or acceptance is deemed to have occurred if the Ordering Party is in default of acceptance.

5.5. If the Ordering Party is in default of acceptance, fails to perform an act of cooperation, or if the Supplier’s performance is delayed for other reasons for which the Ordering Party is responsible, the Supplier is entitled to demand compensation for the resulting damage including additional expenses (in particular storage costs).

§ 6 Retention of Title

6.1. All delivery items remain the property of the Supplier even after handover until full payment of the purchase price and all other present or future claims to which the Supplier is entitled against the Ordering Party from the business relationship. The offsetting of the purchase price claim against the Ordering Party within a current account agreement as well as the recognition of a balance do not affect the retention of title.

6.2. The Supplier is entitled to assign the claims from the retention of title against the Ordering Party to third parties.

6.3. The Ordering Party is obliged to treat the Supplier’s delivery items with care. In particular, the Ordering Party is obliged to insure them sufficiently at replacement value against loss, damage, and destruction, such as against fire, water, and theft, at its own expense if necessary. The Ordering Party hereby assigns claims from the insurance contracts to the Supplier; the Supplier accepts this assignment.

6.4. The Ordering Party may neither pledge the delivery items owned by the Supplier nor assign them as security. The Ordering Party is only entitled to resell the delivery items in the ordinary course of business in accordance with the following provisions. The aforementioned authorization does not exist if the Ordering Party has effectively assigned or pledged the claim arising from the resale of the goods against its contractual partner to a third party in advance or has agreed a prohibition of assignment with them.

6.5. To secure the fulfillment of all claims of the Supplier mentioned in Section 6.1, the Ordering Party hereby assigns to the Supplier all claims—including future and conditional claims—arising from a resale of the Supplier’s delivery items with all ancillary rights in the amount of the value of the delivery items with priority over the remaining part of the Ordering Party’s claims; the Supplier hereby accepts this assignment.

6.6. As long as and to the extent that the Ordering Party meets its payment obligations to the Supplier, the Ordering Party is authorized to collect the claims assigned to the Supplier against its customers within the framework of proper business management. However, the Ordering Party is not entitled to agree on a current account relationship or prohibition of assignment with its customers regarding these claims or to assign or pledge these claims to third parties. If, contrary to sentence 2, a current account relationship exists between the Ordering Party and the purchasers of the reserved delivery items, the claim assigned in advance also refers to the recognized balance and, in the event of the purchaser’s insolvency, also to the then existing balance.

6.7. At the Supplier’s request, the Ordering Party is obliged to disclose the assignment to its debtors, combined with the request to pay the Supplier up to the amount of the Supplier’s claims against the Ordering Party. The Supplier is entitled to notify the Ordering Party’s debtors of the assignment itself at any time and to collect the claims in its own name. The Supplier will not make use of these powers as long as and to the extent that the Ordering Party meets its payment obligations properly and without delay, an application for the initiation of insolvency proceedings for the Ordering Party has not been filed, and the Ordering Party does not suspend payments. If, however, one of the aforementioned cases occurs, the Supplier has a claim that the Ordering Party discloses the assigned claims and the identity of the debtors to the Supplier, provides all information required for debt collection, and hands over the associated documents.

6.8. In the event of seizures or other interventions by third parties, the Ordering Party must notify the Supplier in writing without delay, in particular to enable the Supplier to file a lawsuit pursuant to Section 771 of the German Code of Civil Procedure (ZPO).

6.9. The processing, transformation, or remodeling of the delivery items subject to retention of title by the Supplier is always carried out by the Ordering Party for the Supplier, without any liabilities arising for the Supplier. If the delivery items subject to the Supplier’s retention of title are processed with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in the ratio of the value of the Supplier’s delivery items (final invoice amount, including VAT) to the other processed items at the time of processing. In all other respects, the same applies to the item created by processing as to the delivery items subject to retention of title. If the Supplier’s delivery items subject to retention of title are inseparably mixed or combined with other items not belonging to the Supplier, the Supplier shall acquire co-ownership of the new item in the ratio of the value of the delivery items subject to the Supplier’s retention of title (final invoice amount, including VAT) to the other mixed or combined items at the time of mixing or combining. If the mixing or combining takes place in such a way that the Ordering Party’s item is to be regarded as the main item, it is agreed that the Ordering Party shall transfer proportional co-ownership to the Supplier. The Ordering Party shall keep the resulting sole ownership or co-ownership for the Supplier. The Ordering Party is entitled to dispose of the items newly created through processing, transformation, combining, or mixing in the ordinary course of business, as long as the Ordering Party meets its obligations from the business relationship with the Supplier in a timely manner. However, the Ordering Party is under no circumstances authorized to resell or otherwise exploit these new products under an agreement of a prohibition of assignment with the Ordering Party’s customers, or to pledge or assign them as security. The Ordering Party hereby assigns the claims from the sale of these new products, in which the Supplier is entitled to ownership rights, to the Supplier for security purposes to the extent of the Supplier’s ownership share in the sold goods. If the Ordering Party combines or mixes the delivery items with a main item, the Ordering Party hereby assigns the claims against the third party to the Supplier up to the value of the items originally delivered under reservation; the Supplier hereby accepts these assignments.

6.10. The Supplier undertakes to release the securities to which it is entitled at the request of the Ordering Party to the extent that the realizable value of the Supplier’s securities exceeds its claims to be secured against the Ordering Party by more than 10%; the selection of the securities to be released is at the Supplier’s discretion.

6.11. In the event of conduct by the Ordering Party in breach of contract, in particular in the event of default of payment of more than 10% of the invoice amount over a not insignificant period of time, the Supplier is entitled—without prejudice to further (damage) claims to which the Supplier is entitled—to withdraw from the contract and demand the return of the delivery items. After taking back the delivery items, the Supplier is authorized to exploit them. The proceeds of exploitation shall be credited against the Ordering Party’s liabilities to the Supplier—minus reasonable exploitation costs.

§ 7 Documents / Molds

7.1. The Supplier reserves ownership, copyright, exploitation, and usage rights to product descriptions, drawings, illustrations, calculations, brochures, catalogs, cost estimates, other documents, and molds that it provides to the Ordering Party. A transfer individually or together with ordered delivery items only takes place if this is expressly agreed.

7.2. Documents are to be treated confidentially and may only be reproduced or made accessible to third parties in terms of content or physical access with the prior consent of the Supplier. Upon request, these documents and any copies must be returned immediately if they are no longer required in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. The Supplier shall treat the Ordering Party’s documents accordingly; however, passing on the Ordering Party’s documents to third parties while passing on these obligations is permissible if this serves the fulfillment of the contract, even in the case of a permissible subcontracting.

7.3. If documents or molds from the Ordering Party are required for the manufacture or delivery of the delivery items, the Ordering Party shall provide them without delay. This obligation applies accordingly if the Supplier has handed over and/or transferred its own documents or molds to the Ordering Party. Until the documents and molds are handed over, the Supplier is not obliged to perform; Section 3.4 applies accordingly with the proviso that only the Supplier is entitled to cancel the contract.

§ 8 Material Defects

8.1 The statutory provisions apply to the rights of the Ordering Party in the event of material and legal defects (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for the final delivery of unprocessed goods to a consumer remain unaffected, even if the consumer has processed them further (supplier recourse pursuant to Section 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the Ordering Party or another entrepreneur, in particular by installation into another product.

8.2 The basis of the Supplier’s liability for defects is primarily the agreement reached on the quality of the goods. The Supplier does not provide a warranty for a specific purpose of use or a specific suitability of the goods, unless otherwise expressly agreed in writing; in all other respects, the risk of use and application lies exclusively with the Ordering Party. The Supplier is not liable for a defect in the delivery item that is based on material provided by the Ordering Party. Sentence 3 applies accordingly to specifications, documents, and molds provided by the Ordering Party and bindingly agreed upon.

8.3 Material defects of the goods must be reported to the Supplier by the Ordering Party in writing without delay, at the latest seven days after delivery. Material defects that cannot be discovered within this period even with the most careful inspection must be reported to the Supplier in writing without delay, at the latest seven days after discovery and at the latest before the expiry of the agreed or statutory limitation period. If the Ordering Party fails to carry out the proper inspection and/or notification of defects, the Supplier’s liability for the defect not reported, or not reported in time or properly, is excluded according to statutory regulations.

8.4 After an agreed acceptance of the goods by the Ordering Party has been carried out, the notification of material defects that were detectable during the agreed type of acceptance is excluded.

8.5 In the event of a justified, timely notification of defects, the Supplier may, at its discretion, remedy the defect or deliver a defect-free item (supplementary performance). The Supplier’s right to refuse one or both types of supplementary performance under the statutory requirements remains unaffected. If supplementary performance fails or is refused, the Ordering Party may reduce the purchase price or withdraw from the contract after setting and unsuccessful expiry of a reasonable deadline. If the defect is not significant, the Ordering Party is only entitled to the right of reduction.

8.6 The Supplier is entitled to make the owed supplementary performance dependent on the Ordering Party paying the due purchase price. However, the Ordering Party is entitled to retain a part of the purchase price that is reasonable in relation to the defect.

8.7 The expenses required for the purpose of inspection and supplementary performance, in particular transport, travel, labor, and material costs as well as, if applicable, removal and installation costs, shall be borne or reimbursed by the Supplier in accordance with the statutory regulation if a defect actually exists. Otherwise, the Supplier may demand reimbursement from the Ordering Party for the costs arising from the unjustified request for defect rectification (in particular inspection and transport costs), unless the lack of defectiveness was not recognizable to the Ordering Party.

8.8 If the Ordering Party does not immediately give the Supplier the opportunity to convince itself of the material defect, and in particular does not immediately provide the complained-about delivery items upon request, all rights due to the material defect shall lapse.

8.9 The Supplier shall only assume expenses in connection with supplementary performance insofar as they are reasonable in the individual case, in particular in relation to the agreed price of the delivery items, but in no case exceeding 150% of the value of the goods. The Supplier shall not assume expenses arising from the fact that the delivery items have been moved to a location other than the Ordering Party’s registered office or branch, unless this corresponds to their intended use.

8.10 Claims of the Ordering Party for damages or reimbursement of futile expenses also exist in the case of defects only in accordance with Section 10 and are otherwise excluded.

§ 9 Legal Defects

9.1. The Supplier is liable for legal defects according to statutory regulations, subject to the following provisions.

9.2. Freedom from industrial property rights and copyrights is only guaranteed at the agreed place of delivery, unless otherwise agreed.

9.3. In the event of a legal defect, the Supplier is initially entitled, at its discretion and at its expense, either to obtain a right of use in favor of the Ordering Party or, alternatively, to deliver a comparable delivery item that does not violate third-party rights. If the Supplier does not make use of this option after being requested to do so by the Ordering Party, the Ordering Party is entitled to the statutory rights of withdrawal and reduction.

9.4. The Ordering Party undertakes to inform the Supplier immediately of any claims asserted by third parties, not to recognize such claims, and to reserve all defense options for the Supplier. Claims for damages are excluded if and to the extent that they are based on non-compliance with these obligations.

9.5. If the Supplier or a sub-supplier manufactures the delivery items according to the Ordering Party’s specifications (in particular drawings, models, provided molds, or other parts), the Ordering Party shall ensure that third-party property rights are not violated. Claims of the Ordering Party based on any third-party property rights do not exist. However, the Supplier will inform the Ordering Party of any property rights known to it.

9.6. If a third party asserts property rights to delivery items in accordance with Section 9.5, the Supplier is entitled to stop production and delivery without examining the legal situation. Until final clarification as to whether property rights exist, the Supplier is not obliged to perform; Section 3.4 applies accordingly. The Ordering Party and the Supplier undertake to support each other in clarifying third-party property rights.

9.7. If it is confirmed that a third party is entitled to property rights in the case of Section 9.6, the Ordering Party undertakes to indemnify the Supplier against any claims of the third party arising from the infringement of property rights and to compensate the Supplier for any other resulting damages.

9.8. In all other respects, the Supplier’s liability is governed by Section 10.

§ 10 Liability

10.1. Unless otherwise stated in these T including the following provisions, the Supplier is liable for a breach of contractual and non-contractual obligations according to statutory regulations.

10.2. The Supplier is liable for damages—regardless of the legal grounds—within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, the Supplier is liable, subject to a milder standard of liability according to statutory regulations (e.g., for care in its own affairs), only

• a) for damages resulting from injury to life, body, or health,
• b) for damages resulting from the not insignificant breach of an essential contractual obligation (an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely); in this case, however, Baumüller’s liability is limited to compensation for the foreseeable, typically occurring damage.

10.3. The limitations of liability resulting from Section 10.2 sentence 2 also apply to breaches of duty by or in favor of persons whose fault the Supplier is responsible for according to statutory regulations (legal representatives, vicarious agents). However, they do not apply if the Supplier has fraudulently concealed a defect or has assumed a guarantee for the quality and for claims of the Ordering Party under the Product Liability Act.

10.4. Subject to the above provisions, the Supplier is not liable for damages, regardless of the legal grounds, that did not occur to the delivery item itself, as well as for claims for damages and reimbursement of expenses, in particular from delay, impossibility, other breach of duty, and tort.

10.5. Due to a breach of duty that does not consist of a defect, the Ordering Party may only withdraw or terminate if the Supplier is responsible for the breach of duty. A free right of termination for the Ordering Party (in particular according to Sections 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences apply.

Section 11 Limitation period

11.1. Claims arising from material and legal defects expire within one year from delivery or notification of readiness for delivery. Insofar as acceptance has been agreed, the limitation period begins with acceptance.

11.2. Mandatory statutory special regulations on limitation periods (in particular Section 438 para. 1 no. 1, no. 2, para. 3, Sections 444, 445b BGB) remain unaffected by Section 11.1.

11.3. The aforementioned limitation periods of sales law also apply to contractual and non-contractual claims for damages of the Ordering Party based on a defect in the delivery items, unless the application of the regular statutory limitation period leads to a shorter limitation period in individual cases. However, claims for damages of the Ordering Party pursuant to Section 10.2 sentence 1 and sentence 2 a) as well as under the Product Liability Act expire exclusively according to the statutory limitation periods.

Section 12 Applicable law, place of jurisdiction, severability clause

12.1. For all legal relationships between the Supplier and the Ordering Party, the law of the Federal Republic of Germany shall apply in addition to these conditions, to the exclusion of the referral norms of private international law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, do not apply.

12.2. If the Ordering Party is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the location of the Supplier’s plant in Planegg. However, in all cases, the Supplier is also entitled to bring an action at the Ordering Party’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdictions, remain unaffected.

12.3. Should any provision of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions.