GTC

General Terms and Conditions of Sale of Hans Ziller GmbH

Scope of application

1. These terms and conditions of sale apply to entrepreneurs, legal entities under public law and special funds under public law.

Our deliveries and services are provided exclusively on the basis of the following terms and conditions.

Terms and conditions of the partner that are not expressly recognised by us are not valid.

General provisions

2. The contracting parties shall immediately confirm verbal agreements in detail in writing.

3. Orders only become binding with our order confirmation.

4. The information and illustrations contained in brochures and catalogues are approximate values customary in the industry, unless they have been expressly designated by us as binding.

Long-term and call-off contracts, price adjustment

5. Open-ended contracts can be cancelled with a notice period of 3 months.

6. In the case of long-term contracts (contracts with a term of more than 12 months and open-ended contracts), if there is a significant change in labour, material or energy costs, each contracting party shall be entitled to demand negotiations on an appropriate adjustment of the price, taking these factors into account.

7. If a binding order quantity has not been agreed, we shall base our calculation on the non-binding order quantity (target quantity) expected by the partner for a specific period.
If the partner purchases less than the target quantity, we are entitled to increase the unit price accordingly.

8. In the case of call-off delivery contracts, unless otherwise agreed, binding quantities must be notified to us by call-off at least 1 month before the delivery date.

Additional costs caused by a delayed call-off or subsequent changes to the call-off in terms of time or quantity by our partner shall be borne by the partner; our calculation shall be decisive in this respect.

Confidentiality

9. Each contracting party shall use all documents (including samples, models and data) and knowledge obtained from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same care as its own corresponding documents and knowledge if the other contracting party designates them as confidential or has an obvious interest in their confidentiality.

This obligation begins from the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.

10. The obligation shall not apply to documents and knowledge which are generally known or which were already known to the contractual partner upon receipt without him being obliged to maintain secrecy, or which are subsequently transmitted by a third party authorised to pass them on, or which are developed by the receiving contractual partner without using documents or knowledge of the other contractual partner which are to be kept secret.

Drawings and descriptions

11. If one contractual partner provides the other with drawings or technical documents relating to the goods to be delivered or their manufacture, these shall remain the property of the submitting contractual partner.

Samples and production equipment

12. Unless otherwise agreed, the manufacturing costs for samples and production equipment (tools, molds, templates, etc.) shall be invoiced separately from the goods to be delivered. This also applies to production equipment that has to be replaced due to wear and tear.

13. We shall bear the costs of maintenance and proper storage as well as the risk of damage to or destruction of the production equipment.

14. If the partner suspends or terminates the cooperation during the production period of the samples or means of production, all production costs incurred up to that point shall be borne by the partner.

15. The means of production shall remain in our possession at least until completion of the supply contract, even if the partner has paid for them. Thereafter, the Partner shall be entitled to demand the return of the means of production if a mutual agreement has been reached on the time of return and the Partner has fulfilled its contractual obligations in full.

16. We shall store the means of production free of charge for three years after the last delivery to our partner. Thereafter, we shall request our partner in writing to comment on the further use within 6 weeks. Our duty of safekeeping shall end if no statement is made within these 6 weeks or no new
order is placed.

17. Customer-related means of production may only be used by us for deliveries to third parties with the prior written consent of our partner.

Prices

18. Our prices are quoted in euros excluding VAT, packaging, freight, postage and insurance.

Terms of payment

19. All invoices are due for payment within 30 days of the invoice date, unless otherwise agreed in writing.

20. If we have indisputably delivered partially defective goods, our partner is nevertheless obliged to make payment for the non-defective part, unless the partial delivery is of no interest to him. Otherwise, the partner may only offset counterclaims that have been recognised by declaratory judgement or are undisputed.

21. If the target is exceeded, we shall be entitled to charge interest on arrears at the rate charged by the bank for overdraft facilities, but at least 8 percentage points above the respective base rate of the European Central Bank.

22. In the event of default in payment, we may, after written notification to the partner, suspend the fulfilment of our obligations until receipt of payment.

23. Bills of exchange and cheques shall only be accepted by agreement and only on account of performance and on condition that they are discountable. Discount charges shall be calculated from the due date of the invoice amount. A guarantee for the timely presentation of bills of exchange and cheques and for the protesting of bills of exchange is excluded.

24. If it becomes apparent after conclusion of the contract that our claim for payment is jeopardised by the partner's inability to pay, we may refuse performance and set the partner a reasonable deadline within which it must pay concurrently with delivery or provide security. If the partner refuses to do so or if the deadline expires unsuccessfully, we shall be entitled to withdraw from the contract and demand compensation.

Delivery

25. Unless otherwise agreed, we deliver ‘ex works’. Compliance with the delivery date or delivery period shall be determined by our notification of readiness for dispatch or collection.

26. The delivery period begins with the dispatch of our order confirmation and is extended appropriately if the requirements of Clause 55 are met.

27. Partial deliveries are permissible to a reasonable extent. They shall be invoiced separately.

28. Production-related excess or short deliveries are permissible within a tolerance of 10 per cent of the total order quantity. The total price shall change accordingly.

Dispatch and transfer of risk

29. Goods notified as ready for dispatch must be accepted by the partner without delay. Otherwise we shall be entitled to dispatch them at our own discretion or to store them at the partner's expense and risk.

30. In the absence of a special agreement, we shall choose the means of transport and the transport route.

31. The risk shall pass to the partner upon handover to the railway, the forwarding agent or the carrier or upon commencement of storage, but at the latest upon leaving the factory or warehouse, even if we have taken over the delivery.

Delay in delivery

32. If we can foresee that the goods cannot be delivered within the delivery period, we will inform the partner immediately and in writing, inform him of the reasons for this and, if possible, state the expected delivery date.

33. If the delivery is delayed due to a circumstance listed in Clause 55 or due to an act or omission of the partner, an extension of the delivery period appropriate to the circumstances shall be granted.

34.The partner is only entitled to withdraw from the contract if we are responsible for the failure to meet the delivery date and the partner has unsuccessfully set us a reasonable grace period.

Retention of title

35. We reserve title to the delivered goods until all claims arising from the business relationship with the partner have been fulfilled.

36. The partner shall be entitled to sell these goods in the ordinary course of business as long as he fulfils his obligations arising from the business relationship with us in good time. However, he may neither pledge the reserved goods nor assign them as security. He is obliged to secure our rights in the event of a credited resale of the reserved goods.

37. In the event of breaches of duty by the partner, in particular default in payment, we shall be entitled to withdraw from the contract and take back the goods after the unsuccessful expiry of a reasonable deadline set for the partner; the statutory provisions on the dispensability of setting a deadline shall remain unaffected. The partner is obliged to surrender the goods.
We are entitled to withdraw from the contract if an application is made to open insolvency proceedings against the partner's assets.

38. The partner hereby assigns to us by way of security all claims and rights arising from the sale or, if applicable, the leasing of goods to which we are entitled. We hereby accept the assignment.

39. Any processing or treatment of the goods subject to retention of title shall always be carried out by the partner on our behalf. If the reserved goods are processed or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed or mixed items at the time of processing or mixing.

If our goods are combined or inseparably mixed with other movable items to form a single item and if the other item is to be regarded as the main item, the partner shall transfer co-ownership to us on a pro rata basis insofar as the main item belongs to him. The partner shall hold the property or co-ownership for us. In all other respects, the same shall apply to the item created by processing or combining or mixing as to the reserved goods.

40. The partner must inform us immediately of any enforcement measures taken by third parties against the reserved goods, the claims assigned to us or other securities, handing over the documents necessary for an intervention. This also applies to impairments of any other kind.

41. If the value of the existing securities exceeds the secured claims by more than 20 per cent in total, we shall be obliged to release securities of our choice at the partner's request.

Material defects

42. The quality of the goods shall be based exclusively on the agreed technical delivery specifications. If we have to deliver according to drawings, specifications, samples etc. of our partner, the latter shall assume the risk of suitability for the intended purpose. Decisive for the contractual condition of the goods is the time of the transfer of risk in accordance with Clause 31.

42 a. For our deliveries, we comply with the applicable legal regulations of the European Union and the Federal Republic of Germany, e.g. the REACH Regulation (Regulation EC No. 1907/2006), the Act on the Return and Environmentally Sound Disposal of Electrical and Electronic Equipment (ElektroG) as national implementation of Directive 2002/95/EC (RoHS) and Directive 2002/96/EC (WEEE) and the End-of-Life Vehicles Act as national implementation of EU Directive 2000/52/EC.

We will inform the partner immediately of any relevant changes to the goods, their deliverability, usability or quality, in particular those caused by the REACH Regulation, and coordinate suitable measures with the partner in individual cases.

43. We shall not be liable for material defects caused by unsuitable or improper use, faulty assembly or commissioning by the partner or third parties, normal wear and tear, faulty or negligent handling, nor for the consequences of improper modifications or repair work carried out by the partner or third parties without our consent. The same applies to defects that only insignificantly reduce the value or suitability of the goods.

44. Unless otherwise agreed, the limitation period for claims for material defects shall be governed by the law.

45. If an acceptance of the goods or an initial sample inspection has been agreed, the notification of defects which the partner could have detected during a careful acceptance or initial sample inspection is excluded.

46. We must be given the opportunity to determine the defect complained about. Rejected goods must be returned to us immediately upon request; we shall bear the transport costs if the complaint is justified. If the partner does not fulfil these obligations or makes changes to the goods without our consent, we shall bear the transport costs.
bereits beanstandeten Ware vornimmt, verliert er etwaige Sachmängelansprüche.

47. In the event of justified, timely notification of defects, we shall, at our discretion, either repair the rejected goods or deliver a faultless replacement.

48. If we do not fulfil these obligations or do not fulfil them in accordance with the contract within a reasonable period of time, the partner may set us a final deadline in writing within which we must fulfil our obligations. After the unsuccessful expiry of this period, the partner may demand a reduction in the price, withdraw from the contract or carry out the necessary rectification itself or have it carried out by a third party at our expense and risk. Reimbursement of costs is excluded if the expenses increase because the goods have been moved to another location after our delivery, unless this is in accordance with the
intended use of the goods.

49. Statutory rights of recourse of the partner against us shall only exist insofar as the partner has not made any agreements with its customer that go beyond the statutory claims for defects. Clause 48, last sentence, shall also apply accordingly to the scope of the rights of recourse.

Other claims, liability

50. Unless otherwise stated below, other and further claims of the partner against us are excluded. This applies in particular to claims for damages for breach of duties arising from the contractual obligation and from unauthorised action. We are therefore not liable for damage that has not occurred to the delivered goods themselves. In particular, we are not liable for loss of profit or other financial losses of the partner.

51. The above limitations of liability shall not apply in the event of wilful intent, gross negligence on the part of our legal representatives or executives or in the event of culpable breach of material contractual obligations. In the event of culpable breach of material contractual obligations, we shall be liable - except in cases of wilful intent or
gross negligence on the part of our legal representatives or executives - only for reasonably foreseeable damage typical of the contract.

52. Furthermore, the limitation of liability shall not apply in cases in which liability exists under the Product Liability Act for personal injury or property damage to privately used objects in the event of defects in the delivered goods. It also does not apply in the event of injury to life, body or health and in the absence of warranted characteristics, if and insofar as the purpose of the warranty was precisely to protect the partner against damage that did not occur to the delivered goods themselves.

53. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.

54. The statutory provisions on the burden of proof remain unaffected by this.

Force majeure

55. Force majeure, labour disputes, unrest, official measures, non-delivery by our suppliers and other unforeseeable, unavoidable and serious events shall release the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. This shall also apply if these events occur at a time when the affected contractual partner is in default, unless it has caused the default wilfully or through gross negligence. The contractual partners are obliged to provide the necessary information without delay within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.

Place of fulfilment, place of jurisdiction and applicable law

56. Unless otherwise stated in the order confirmation, the place of fulfilment shall be our registered office.

57. The place of jurisdiction for all legal disputes, including in the context of a bill of exchange and cheque process, is our registered office. We are also entitled to bring an action at the registered office of the partner.

58. The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany.

The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG - ‘Vienna Sales Convention’) is excluded.


(WSM-AGB-280109)