General Terms & Conditions of iPEK International GmbH

General Terms of Sale and Delivery of iPEK International GmbH
(Version as of July 2024)

See/Gewerbepark 22, D-87477 Sulzberg - hereinafter "iPEK" or "we" -

I. Scope of Application

I.1 All our deliveries and services are provided exclusively based on these General Terms of Sale and Delivery (hereinafter referred to as "Terms of Sale"). They shall form an integral part of all contracts which we conclude with our customers for the deliveries or services offered by us. They shall also apply in their respective version to all future deliveries or services, even if we do not refer to their application separately in individual cases. By placing an order or accepting our deliveries and services, the customer acknowledges the application of these Terms of Sale.

I.2 Deviating, contrary or supplementary terms and conditions of the customer or third parties shall only apply if we have expressly agreed to their application in writing. This shall apply even if we refer to a document to which the customer's terms and conditions are attached or which refers to them.

I.3 Additions and amendments to these Terms of Sale shall be made in writing to be valid. This requirement may only be waived in writing. Transmission by telecommunication, in particular, by fax or by e-mail, shall be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.

II. Offer and Conclusion of the Contract

II.1 All our offers are subject to change and non-binding, unless otherwise stated in the respective offer. Purchase orders or orders of the customer shall be deemed a binding offer and may be accepted by us within three (3) weeks after receipt. A contract shall only be concluded by our written order confirmation and shall be governed exclusively by the content of the order confirmation and these Terms of Sale. The transmission of the order confirmation by e-mail or fax shall be deemed sufficient to comply with the written form requirement.

II.2 In the event of any discrepancies between the order confirmation and these Terms of Sale, the provisions of the order confirmation shall prevail.

II.3 Our specifications of the goods to be delivered (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as any depictions of the above (e.g. drawings and illustrations) are only approximate unless the contractually intended purpose requires exact conformity. They are not any guaranteed quality features, but descriptions or markings of the goods to be delivered. Deviations that are commercially customary and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, shall be permissible, provided, that they do not impair the usability for the contractually intended purpose.

II.4 We retain title in and/or copyright of all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids provided to the customer. The customer may not make these items accessible to third parties or use or reproduce them for purposes other than the purchase of goods from us without our express consent. At our request, the customer shall return these items and any copies made to us in full or destroy them. This shall also apply if the items are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.

III. Prices and Terms of Payment, Right to Set-off

III.1 The prices shall apply to the scope of delivery and services listed in the order confirmation. Additional or special services will be charged separately. Prices are quoted in EURO, excluding packaging, the statutory value added tax, as well as fees and other public charges; in case of export deliveries plus customs duty.

III.2 If the delivery or service is provided more than four (4) months after the conclusion of the contract and if unforeseeable cost increases have occurred after the conclusion of the contract for which we are not responsible with regard to our deliveries and services, we shall be entitled at our reasonable discretion to pass on the higher costs by increasing the agreed price accordingly on a pro rata basis.

III.3 Invoiced amounts shall be paid within thirty (30) days without deduction, unless otherwise agreed in writing. The date of receipt by us shall be decisive for the date of payment. Cheques shall only be accepted on account of fulfilment (erfüllungshalber). If the customer fails to provide payment on the due date, the customer shall be in default without the need for a prior reminder. In this case, we shall be entitled to demand interest on the overdue payment at the statutory rate. The assertion of further damages caused by default shall remain unaffected.

III.4 Offsetting with counterclaims of the customer shall only be permitted to the extent that the counterclaims have been acknowledged by us, are undisputed, have been finally determined by a court of law or are ready for decision. The customer shall only be entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship and has been acknowledged by us, is undisputed or has been finally determined by a court of law. In the event of defects, the customer's counter rights shall remain unaffected.

III.5 If we become aware of a significant deterioration in the financial circumstances of the customer after the conclusion of the contract (e.g. because the customer defaults on payment), we shall be entitled to provide outstanding deliveries or services only against advance payment or the provision of security; if these are not provided even after the expiry of a reasonable grace period, we shall be entitled to withdraw from the contract in whole or in part, irrespective of further rights. In the case of contracts for the manufacture of not substitutable items (custom-made products), we may declare withdrawal immediately.

IV. Delivery and Delivery Time

IV.1 If collection of the goods is agreed, delivery of the goods shall be made FCA (Sulzberg, Germany) in accordance with Incoterms 2020. If shipment of the goods is agreed, delivery of the goods shall be made CPT (agreed place of destination) in accordance with Incoterms 2020, unless otherwise agreed. All delivery and performance obligations shall be subject to correct and timely self-delivery, unless the incorrect or delayed self-delivery is our fault.

IV.2 Deadlines and dates for deliveries and services communicated by us shall always be deemed only approximations, unless otherwise agreed by us. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party commissioned with the transport.

IV.3 We may - without prejudice to our other rights - demand from the customer an extension of delivery dates and deadlines or a postponement of delivery dates and deadlines by the period during which the customer fails to meet its contractual obligations towards us.

IV.4 We shall not be liable for impossibility or delay of delivery or performance to the extent that such impossibility or delay is caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in procuring necessary official permits or official measures) for which we are not responsible. Provided that such events make the delivery or the performance of the service substantially more difficult or impossible for us and the impediment is not only temporary, we shall be entitled to withdraw from the contract. Where the effect of the impediment is temporary, the delivery or service periods shall be extended or the delivery or service dates shall be postponed as long as the impediment prevents us from the delivery or performance of the service in addition to a reasonable start-up period. To the extent that the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, the customer may withdraw from the contract by immediately notifying us in writing.

IV.5 We shall be entitled to make partial deliveries or render partial services provided that these are reasonable for the customer.

V. Place of Performance, Shipment, Packaging, Transfer of Risk, Acceptance

V.1 The place of performance for all obligations arising from the contractual relationship shall be our registered office in 87477 Sulzberg, Germany, unless otherwise specified. If we are also responsible for the installation, the place of performance shall be the place where the installation shall be performed.

V.2 Provided that we arrange the shipment of the goods at the request of the customer, the shipment shall take place at the expense and risk of the customer. Provided that the customer does not give us any instructions regarding the type of shipment and packaging, shipment and packaging shall be carried out according to our reasonable discretion.

V.3 The risk of accidental loss or accidental deterioration shall pass to the customer at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply in the event of partial deliveries or in the event that we have assumed responsibility for other services (e.g. shipment or installation).

In the event that the shipment or handover is delayed as a result of a circumstance for which we are not responsible or in the event that the customer notifies us in advance that he will not accept the goods, the risk shall pass to the customer on the date of notification of readiness of the delivery for shipment.

V.4 Provided that acceptance (Abnahme) has been agreed, the customer’s acceptance shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services (Werkvertragsrecht) shall also apply mutatis mutandis to an agreed acceptance.

V.5 Storage costs after transfer of risk shall be borne by the customer. In case of storage by us, the storage costs shall amount to 0.25 % of the invoice amount of the goods to be stored per week. The right to claim and prove further or lower storage costs shall be reserved.

V.6 We will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request by the customer and at the customer's expense.

VI. Liability for Defects

VI.1 The delivered goods shall be inspected carefully immediately after delivery to the customer or to the third party designated by the customer. With regard to obvious defects or other defects that would have been recognizable in the course of an immediate, careful inspection, the delivered goods shall be deemed to have been approved by the customer if we do not receive a written notice of defect within seven (7) working days after delivery. With regard to other defects, the delivered goods shall be deemed to have been approved by the customer if the notice of defect is not received by us within seven (7) working days after the time at which the defect became apparent.

VI.2 We warrant that the delivered goods have the agreed quality. The agreed quality shall be measured exclusively in accordance with the specific agreements made in writing between us and the customer or our confirmations of properties, features, and performance characteristics of the goods. We shall not be held liable for public statements made by third parties that are not authorized by us. The statutory provisions on the burden of proof in the event of defects shall remain unaffected in all other respects. Descriptive or explanatory statements regarding the goods or their intended use as well as public statements shall not be regarded as a guarantee for a particular quality of the goods. A written agreement or a written confirmation by us shall be decisive for the content of such quality guarantees.

VI.3 In the event of defects to the delivered goods, we shall first be obliged and entitled to repair the delivered goods or to make a replacement delivery (hereinafter referred to as "subsequent performance") at our discretion within a reasonable period of time. Subsequent performance shall neither include the removal of the defective goods nor their re-installation if we were not originally obliged to install them. At our request, the customer shall send us the defective goods  and grant us the time and opportunity necessary for subsequent performance. We shall bear the material, transport, labor and, if applicable, installation and removal costs incurred for the purpose of subsequent performance to the extent provided by law, provided that the defects were rightfully asserted. If a notice of defect by the customer proves to have no merit and the customer has recognized this or has negligently failed to recognize this, the customer shall be obliged to reimburse us for the expenses incurred as a result. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay, of the subsequent performance, the customer may withdraw from the contract with respect to the defective part of the delivery or reasonably reduce the price. Claims of the customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with Section VII. and shall otherwise be excluded.

VI.4 Only in urgent cases or to prevent disproportionately large damages or in the event that we are in default with the remedy of the defect, the customer shall have the right to remedy the defect itself or have it remedied by third parties and to demand reimbursement of the necessary costs from us after notifying us immediately. The customer shall notify us immediately of any such substitute performance, if possible in advance. The right of self-remedy shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions. We shall not assume any liability for damage caused by unsuitable or improper use, incorrect handling or natural wear and tear, unless we are responsible for the damage.

VI.5 We shall not be obliged to remedy a defect if such remedy has been rendered impossible or unreasonably difficult by  a modification of the delivered goods made by the customer or a third party without our consent. . In any case, the customer shall bear any additional costs associated with the remedy of a defect that has been caused by a modification of the delivered goods.

VI.6 The limitation period for warranty claims shall be one (1) year from the transfer of risk. This shall also apply to goods used in industrial single-shift operation. Provided that the mandatory law requires a longer limitation period (§ 445b of the German Civil Code (BGB)) as well as for claims for damages arising from injury to life, body or health and with regard to the rights of the customer in the case of fraudulently (arglistig) concealed defects or damage caused by willful misconduct (Vorsatz) or by gross negligence (grobe Fahrlässigkeit), the statutory limitation periods shall apply.

VII. Liability and Compensation for Damages

VII.1 Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited in accordance with the provisions of this Section VII, provided that culpability is involved in each case.

VII.2 We shall not be held liable in the event of simple negligence (einfache Fahrlässgkeit) on the part of our executive bodies, legal representatives, employees or other vicarious agents (Erfüllungsgehilfen), provided, that this does not involve a breach of essential contractual obligations (wesentliche Vertragspflichten). Essential contractual obligations are the obligation to deliver and install the goods on time, goods’ freedom from defects to the extent that the goods’ functionality and usability is not more than insignificantly impaired, as well as advisory, protective and custodial obligations that are intended to enable the customer to use the goods in accordance with the contract or are intended to protect the life or limb of the customer's personnel or to protect the customer's property from significant damage.

VII.3 Provided that we are liable for damages on the merits (dem Grunde nach) in accordance with Section VII.2, this liability shall be limited to foreseeable damage typical of the contract, i.e. to damage which we foresaw as a possible consequence of a breach of contract at the time the contract was concluded or which we should have foreseen when exercising due dilligence and which is typically to be expected when the goods are used for their intended purpose.

VII.4 The foregoing exclusions and limitations of liability shall apply to the same extent in favor of our executive bodies, legal representatives, employees, and other vicarious agents.

VII.5 Provided that we give technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.

VII.6 The customer shall be obliged to take reasonable measures to avert and mitigate damages.

VIII. Retention of Title

VIII.1 The goods delivered by us to the customer shall remain our property (hereinafter the "Retained Goods") until full payment of all existing current and future claims against the customer arising from the business relationship between us and the customer. In the event of several claims or current account, the retention of title shall apply as security for the respective balance claims to which we are entitled.

VIII.2 The customer shall store the Retained Goods for us free of charge. The customer is obliged to handle the Retained Goods with care for the duration of the retention of title. He shall insure the Retained Goods adequately at replacement value at his own expense, provide us with the corresponding proof of insurance and assign the claims from the insurance to us.

VIII.3 In the event that the Retained Goods are processed by the customer, it is agreed that the processing shall be carried out in our name and for our account as manufacturer and that we shall acquire direct ownership or - if the processing is carried out with materials of several owners or the value of the processed item is higher than the value of the Retained Goods - co-ownership (fractional ownership) of the newly created item in the ratio of the value of the Retained Goods to the value of the newly created item. In the event that no such acquisition of ownership should occur on our part, the customer shall already now transfer its future ownership or - in the above-mentioned ratio - co-ownership of the newly created item to us as security. In the event that the Retained Goods are combined or inseparably mixed with other items to form a single item, we shall acquire co-ownership of the new item in the ratio of the value of the Retained Goods to the other items at the time of mixing or combination. If the mixing or combination is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the co-ownership thus created in safe custody for us free of charge.

VIII.4 The customer shall be entitled to process and sell the Retained Goods in the ordinary course of business up until the occurrence of a recovery event (Eintritt des Verwertungsfalls) (Section VIII.8). Pledges, transfers of title by way of security or other dispositions endangering our ownership shall not be permitted. In the event of resale of the Retained Goods, the customer hereby assigns to us by way of security the claim against the purchaser arising therefrom. We accept this assignment. The same shall apply to other claims which take the place of the Retained Goods or which otherwise arise in respect of the Retained Goods, such as insurance claims or claims in tort in the event of loss or destruction. In the event that the customer sells the reserved goods after processing or after combining, mixing, or blending them with other goods or together with other goods, the assignment of claims shall be deemed to be agreed only in the amount of the part corresponding to the purchase price agreed between us and the customer plus a safety margin of 10% of this price. We revocably authorize the customer to collect the claims assigned to us in his own name. We may revoke this authorization to collect as well as the authorization to resell in case of realization (clause VIII.8).

VIII.5 The customer shall provide us with all requested information about the Retained Goods or the claims assigned to us hereunder at any time.

VIII.6 In the event that third parties seize the Retained Goods, in particular by way of seizure (Pfändung), the customer shall immediately notify them of our title and inform us thereof in order to enable us to enforce our ownership rights. In the event that the third party cannot reimburse us for the costs of a court or out-of-court procedure, the customer shall be liable to us for such costs, provided that the enforcement of our ownership rights was successful and we have unsuccessfully attempted to enforce the costs against the third party.

VIII.7 The customer may demand release to the extent that the Retained Goods and the items or claims replacing them exceed the amount of the secured claims by more than 10%. The selection of the items to be released thereafter shall be at our discretion.

VIII.8 If we withdraw from the contract due to a breach of contract by the customer - in particular default of payment, if insolvency measures are taken against the customer, or if insolvency proceedings are opened against the customer's assets or if the opening of such proceedings is rejected due to insufficient assets - we shall be entitled to demand the return of the Retained Goods or to collect the secured claims ourselves.

IX. No Re-Export to Russia; Prohibition of the transfer of Intellectual Property Rights and Trade Secrets

IX.1 If any products are sold, supplied, or transferred to a buyer domiciled or located in a country outside the European Union which is not a partner country as defined in Annex VIII of Council Regulation (EU) No 833/2014, and if such products fall within the scope of the prohibition not to sell, export or re-export, directly or indirectly, to the Russian Federation or for use in the Russian Federation in terms of Article 12g Council Regulation (EU) No 833/2014, the customer must not sell, export or re-export, directly or indirectly, these products to the Russian Federation or for use in the Russian Federation.

In such a case the customer shall use best efforts to ensure that the purpose of this Clause IX.1 is not frustrated by any third parties further down the commercial chain, including potential resellers.

IX.2 Where intellectual property rights or trade secrets are sold, licensed, or transferred, or rights to access or re-use any material or information protected by intellectual property rights or protected as trade secret are granted to a buyer domiciled or located in a country outside the European Union which is not a partner country as defined in Annex VIII of Council Regulation (EU) No 833/2014, the customer shall be obliged not to use such rights and/or trade secrets that fall under the scope of Article 12ga of Council Regulation (EU) No 833/2014.

The customer shall be obliged to pass on any restrictions on the use of intellectual property rights and/or trade secrets within the meaning of this Clause IX.2 to possible sublicensees.

IX.3 The customer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including potential resellers, that would have the potential to frustrate the purpose of Clause IX.1 and/or IX.2.

IX.4 Each culpable breach of Clauses IX.1, IX.2 or IX.3 shall constitute a material breach of contract. In this case, we shall be entitled to:

(i) rescind the sales contracts affected by the breach without prior warning in accordance with Sec. 323 para. (2) no. (3) BGB (German Civil Code); and

(ii) demand from the customer the payment of a reasonable contractual penalty to be determined by us in accordance with Sec. 315 BGB (German Civil Code) (based on our equitable discretion) which shall be subject to judicial review by the competent court upon request of the customer.

IX.5 In case of rescission by us in accordance with Clause IX.4, the customer shall be obliged to return to us any products affected by the rescission without undue delay and at its own expense.

IX.6 The customer shall immediately inform us about any problems to comply with Clauses IX.1, IX.2 or IX.3, including any relevant activities by third parties that have the potential to frustrate the purpose of Clause IX.1 and/or IX.2. The customer shall upon request provide us within two (2) weeks with all information concerning its compliance with the obligations set out in Clauses IX.1, IX.2 or IX.3.

IX.7 Moreover, even if a product or a buyer does not fall within the scope of Council Regulation (EU) 833/2014, the customer must not sell, export or re-export, directly or indirectly, the products to the Russian Federation or for use in the Russian Federation. In such a case Clauses IX.2 to IX.6 shall apply accordingly.

X. No Re-Export to Belarus

X.1 If any products are sold, supplied, or transferred to a buyer domiciled or located in a country outside the European Union which is not a partner country as defined in Annex Vba of Council Regulation (EG) No 765/2006, and if such products fall within the scope of the prohibition not to sell, export or re-export, directly or indirectly, to Belarus or for use in Belarus in terms of Article 8g of Council Regulation (EG) No 765/2006, the customer must not sell, export or re-export, directly or indirectly, these products to Belarus or for use in Belarus.

X.2 In such a case the customer shall use best efforts to ensure that the purpose of Clause X.1 is not frustrated by any third parties further down the commercial chain, including potential resellers.

X.3 The customer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including potential resellers, that would have the potential to frustrate the purpose of Clause X.1.

X.4 Each culpable breach of Clauses X.1, X.2 or X.3 shall constitute a material breach of contract. In this case, we shall be entitled to:

(i) rescind the sales contracts affected by the breach without prior warning in accordance with Sec. 323 para. (2) no. (3) BGB (German Civil Code); and

(ii) demand from the customer the payment of a reasonable contractual penalty to be determined by us in accordance with Sec. 315 BGB (German Civil Code) (based on our equitable discretion) which shall be subject to judicial review by the competent court upon request of the customer.

X.5 In case of rescission by us in accordance with Clause X.4, the customer shall be obliged to return to us the products affected by the rescission without undue delay and at its own expense.

X.6 The customer shall immediately inform us about any problems to comply with Clauses X.1, X.2 or X.3, including any relevant activities by third parties that have the potential to frustrate the purpose of Clause X.1. The customer shall upon request provide us within two (2) weeks with all information concerning its compliance with the obligations set out in Clauses X.1, X.2 or X.3.

X.7 Moreover, even if a product or a buyer does not fall within the scope of Council Regulation (EG) No 765/2006, the customer must not sell, export or re-export, directly or indirectly, the products to Belarus or for use in Belarus. In such a case Clauses X.2 to X.6 shall apply accordingly.

XI. Final Provisions

XI.1 Notwithstanding any other exclusive place of jurisdiction, the exclusive place of jurisdiction for the decision of all disputes arising from or in connection with the business relationship shall be Kempten, Germany. However, we shall be entitled to sue the customer at any other statutory place of jurisdiction.

XI.2 The legal relationship between us and the customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

XI.3 In the event that one or more provisions of these Terms of Sale should be or become invalid in whole or in part, the validity of the remaining provisions shall not be affected thereby. The wholly or partially invalid provision shall be replaced by a legally valid provision which comes as close as possible to the economic objective of the invalid provision. This shall apply accordingly in the event of a loophole.

XI.4 The customer shall not be entitled to assign claims arising from contracts with us to third parties. § 354a of the German Commercial Code (HGB) shall remain unaffected.

 

Sulzberg, July 2024, iPEK International GmbH