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

– As of 08/2020 –

Section 1 Scope

1.1. These General Terms and Conditions of Delivery and Payment (GTC) apply to all contracts between B&W PolyEngineering Türkheim GmbH (Supplier) and its customers (Purchaser) who, when concluding the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs within the meaning of § 14 BGB), irrespective of whether the customers are natural or legal persons or partnerships with legal capacity. The GTC apply in particular to contracts for the sale and/or delivery of movable goods, irrespective of whether the Supplier manufactures the delivery items itself or purchases them from suppliers. The GTC shall also apply to similar future contracts without the supplier having to refer to them again in each individual case.

1.2. These GTC apply exclusively. Any deviating, conflicting or supplementary General Terms and Conditions of the Customer are expressly rejected. This shall also apply in particular if the Supplier is aware of the Customer’s General Terms and Conditions 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. Verbal promises made by the Supplier prior to the conclusion of the contract are generally non-binding. Contracts concluded in writing or in text form are presumed to be correct and complete. We reserve the right to provide evidence of individual agreements in accordance with section 1.3.

§ 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 of the supplier.

2.2. The supplier can accept orders from the customer within 14 days. The Supplier may declare acceptance in writing or text form (e.g. e-mail) by confirming the order and by delivering the ordered items.

2.3. Information provided by the supplier on the subject matter 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 approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or designations 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 permitted, provided they do not impair the usability for the contractually intended purpose.

§ 3 Delivery and Performance

3.1. If a delivery period has not been agreed individually, the supplier shall specify this when accepting the order. If no specification is made, the delivery period shall be approximately two weeks from conclusion of the contract. Compliance with the delivery period shall be deemed equivalent if the supplier has notified the purchaser that the goods are ready for dispatch within the delivery period or if the goods have left the supplier’s works within the delivery 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 shall entitle the Supplier to suspend delivery for the duration of the hindrance and a reasonable start-up period. Force majeure shall be deemed to exist if the delays in delivery are due to an unusual and unforeseeable event over which the supplier has no influence and the consequences of which could not have been avoided despite exercising due care. This shall also apply if a delay has already occurred in the presence of such events. Force majeure shall include in particular or shall be deemed equivalent to force majeure: 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 failures, machine breakdowns, shortages of raw materials or energy), obstruction of transport routes, delays in import/customs clearance and all other circumstances which, without being the fault of the supplier, make deliveries significantly more difficult or impossible. It is irrelevant whether these circumstances occur at the supplier’s or a sub-supplier’s premises. If, due to the aforementioned events, the execution of the contract becomes unreasonable for the Purchaser or the Supplier, in particular if the execution of the contract is delayed in essential parts by more than six months, this party may declare the contract avoided.

3.5. The occurrence of a delay in delivery by the Supplier shall be determined in accordance with the statutory provisions. Notwithstanding sentence 1, however, a reminder from the purchaser is always required. If the Supplier is in default of delivery, the Purchaser may demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. The Supplier reserves the right to prove that the Purchaser has suffered no loss at all or only a significantly lower loss than the above 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 not agreed until four or more weeks after conclusion of the contract and if duties, agreed external costs or raw material prices increase significantly after conclusion of the contract, the supplier shall be entitled to increase the agreed price to the same extent. The same shall apply if new levies 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 Purchaser immediately of the price increase and shall disclose the reasons for the price increase at the request of the Purchaser. In this case, the Purchaser shall be entitled to terminate the contract within two weeks of notification of the price increase.

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

4.4. Upon expiry of the payment period pursuant to clause 4.2. the customer is in default. 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 claim further damages caused by default. The Supplier’s claim to commercial maturity interest (§ 353 HGB) against merchants shall remain unaffected.

4.5. The customer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery items, the customer’s counter-rights shall 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 shall be 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 subsequent performance.

5.2. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest when the goods are handed over. If shipment has been agreed, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person otherwise designated to carry out the shipment.

5.3. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also 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 shall remain the property of the Supplier even after handover until full payment of the purchase price and all other current or future claims to which the Supplier is entitled from the business relationship with the Customer. The offsetting of the purchase price claim against the customer within a current account agreement and the recognition of a balance shall 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 customer is obliged to treat the supplier’s delivery items with care. In particular, the Purchaser shall be obliged to insure them adequately at its own expense against loss, damage and destruction, e.g. against fire, water and theft, at replacement value. The Purchaser hereby assigns to the Supplier any claims arising from the insurance contracts; the Supplier accepts this assignment.

6.4. The customer may neither pledge nor assign by way of security the delivery items owned by the supplier. The purchaser is only entitled to resell the delivery items in the ordinary course of business in accordance with the following provisions. The aforementioned entitlement shall not apply if the customer has effectively assigned or pledged the claim against his contractual partner arising from the resale of the goods to a third party in advance or has agreed a prohibition of assignment with him.

6.5. The Purchaser assigns to the Supplier as security for the fulfillment of all obligations set forth in Section 6.1. The Supplier hereby assigns to the Purchaser all claims – including future and conditional claims – arising from the resale of the Supplier’s delivery items, including all ancillary rights, in the amount of the value of the delivery items with priority over the remaining part of the Purchaser’s claims; the Supplier hereby accepts this assignment.

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

6.7. At the Supplier’s request, the Purchaser shall be obliged to notify its debtors of the assignment, together with the request to pay the Supplier up to the amount of the Supplier’s claims against the Purchaser. The Supplier shall also be entitled to notify the Purchaser’s debtors of the assignment at any time and to collect the claims in its own name. The Supplier shall not make use of these powers as long as and to the extent that the Purchaser meets its payment obligations properly and without default, no application for the opening of insolvency proceedings against the Purchaser has been filed and the Purchaser does not suspend payments. If, however, one of the aforementioned cases occurs, the Supplier shall be entitled to demand that the Purchaser informs the Supplier of the assigned claims and the identity of the debtors, provides all information necessary for the collection of the claims and hands over the relevant 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 handling, processing or transformation of the delivery items subject to retention of title by the Supplier shall always be carried out by the Purchaser on behalf of the Supplier, without the Supplier incurring any liabilities as a result. 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 shall apply to the item resulting from the 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 retention of title of the Supplier (final invoice amount, including VAT) to the other mixed or combined items at the time of mixing or combining. If the mixing or combination takes place in such a way that the Purchaser’s item is to be regarded as the main item, it is agreed that the Purchaser shall transfer co-ownership to the Supplier on a pro rata basis. The Purchaser shall keep the sole ownership or co-ownership thus created for the Supplier. The Purchaser shall be entitled to dispose of the newly created items in the ordinary course of business as long as the Purchaser fulfills the obligations arising from the business relationship with the Supplier in due time. However, under no circumstances shall the Purchaser be authorized to resell or otherwise dispose of these new products under agreement of a prohibition of assignment with the Purchaser’s customers, or to pledge or assign them as security. The Purchaser hereby assigns to the Supplier by way of security the claims arising from the sale of these new products to which the Supplier is entitled to ownership rights to the extent of the Supplier’s ownership share in the goods sold. If the Purchaser combines or mixes the delivery items with a main item, the Purchaser hereby assigns to the Supplier the claims against the third party up to the value of the items originally delivered under reservation of title; 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 breach of contract by the Purchaser, in particular in the event of default in payment of more than 10% of the invoice amount over a not insignificant period of time, the Supplier shall be entitled – without prejudice to any further claims (for damages) 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 shall be entitled to utilize them. The proceeds of the sale shall be set off against the Purchaser’s existing liabilities to the Supplier – less reasonable costs of sale.

§ 7 Documents / Molds

7.1. The Supplier reserves the rights of ownership and copyright as well as the rights of use and exploitation of product descriptions, drawings, illustrations, calculations, brochures, catalogs, cost estimates, other documents and forms which it provides to the Buyer. A transfer individually or together with ordered delivery items shall only take place if this has been expressly agreed.

7.2. Documents shall be treated confidentially and shall only be reproduced or made available to third parties in fact or in content with the prior consent of the Supplier. Upon request, these documents and any copies thereof shall 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 Purchaser’s documents accordingly; however, the Purchaser’s documents may be passed on to third parties subject to the passing on of these obligations if this serves the fulfillment of the contract, even in the case of a permissible subcontracting.

7.3. If the customer’s documents or molds are required for the manufacture or delivery of the delivery items, the customer shall make these available without delay. This obligation shall apply accordingly if the Supplier has handed over and/or transferred its own documents or molds to the Purchaser. Until the documents and forms are handed over, the supplier is not obliged to perform; clause 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 defect of title, the Supplier shall initially be entitled, at its own discretion and expense, either to obtain a right of use in favor of the Purchaser or to deliver a comparable delivery item which does not infringe any third-party rights. If the Supplier does not make use of this option after being requested to do so by the Customer, the Customer shall be entitled to the statutory rights of withdrawal and reduction.

9.4. The Customer undertakes to inform the Supplier immediately of any claims asserted by third parties, not to acknowledge such claims and to withhold all defense options from the Supplier. Claims for damages are excluded if and insofar as they are based on non-compliance with these obligations.

9.5. If the Supplier or an upstream supplier manufactures the delivery items according to the Purchaser’s specifications (in particular drawings, models, molds or other parts provided), the Purchaser shall ensure that the industrial property rights of third parties are not infringed. The Purchaser shall have no claims based on any third-party property rights. However, the Supplier shall inform the Purchaser of any industrial property rights of which it is aware.

9.6. If a third party asserts industrial property rights to delivery items in accordance with Section 9.5. the supplier shall be entitled to cease production and delivery without examining the legal situation. Until final clarification of whether property rights exist, the supplier is not obliged to perform; clause 3.4. applies accordingly. Purchaser and Supplier undertake to support each other in the clarification of third-party property rights.

9.7. If it is confirmed that a third party in the case of clause 9.6. If the supplier is entitled to industrial property rights, the purchaser undertakes to indemnify the supplier against any claims of the third party arising from the infringement of the industrial property rights and to compensate the supplier for any other damages incurred as a result.

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 shall be liable for damages – irrespective 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 shall be liable, subject to a milder standard of liability in accordance with statutory provisions (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. The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if the supplier is responsible for the breach of duty. A free right of termination of the customer (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall 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. Notwithstanding clause 11.1. mandatory statutory special regulations on the statute of limitations (in particular § 438 Para. 1 No. 1, No. 2, Para. 3, §§ 444, 445b BGB).

11.3. The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the customer which are based on a defect of 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 by the customer in accordance with clause 10.2. sentence 1 and sentence 2 a) and in accordance with the Product Liability Act shall lapse exclusively in accordance with the statutory limitation periods.

Section 12 Applicable law, place of jurisdiction, severability clause

12.1. The law of the Federal Republic of Germany shall apply to all legal relationships between the Supplier and the Customer in addition to these Terms and Conditions, to the exclusion of the conflict of law rules of private international law. The provisions of the Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.

12.2. If the Buyer 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 shall be the location of the Supplier’s plant in Planegg. However, in all cases the Supplier shall also be entitled to bring an action at the Customer’s general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall 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.